IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 2603 of 2008, Decided on: 26.03.2009. Kundan Singh. … … … Petitioner. Versus State of H.P. and another. … … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting No.1 For the petitioner: Ms. Ranjana Parmar, Advocate. For the Respondents: Mr. R. K. Sharma, Senior Additional Advocate General with Mr. Vikas Rathore, Deputy Advocate General. Rajiv Sharma, Judge: The petitioner was appointed as Constable, Wireless Grid in the pay scale of Rs.125-150. He made several representations to consider him for promotion to the post of Head Constable invoking 10% exemptee quota. He was conveyed decision by the Deputy Inspector General of Police (Wireless) on 28.3.1994 to the following effect:- “With reference to your letter No.66, dated 26.2.1994, it is informed in this regard that there is no post of Head Constable of General duty, therefore, you Whether reporters of local papers may be allowed to see the judgment? - 2 - cannot be promoted against 15% quota, if the post of Head Constable general duties created, then you can only be promoted on the basis of seniority.” It is evident from the contents of this letter noted here-in-above that the petitioner’s case could not be considered for promotion against 15% quota and he was to be considered for promotion as and when the post of Head Constable General Duty was created. It is not disputed that the petitioner was appointed vide Annexure A-2, dated 26.3.1964. It is settled law by now that there should be promotional avenues available to every employee to remove stagnation. It is a unique case where the petitioner has no promotional avenues for being considered for the higher post of Head Constable. Their Lordships of the Hon’ble Supreme Court have held that there should be atleast one to two chances of promotion available in every cadre. It is true that the Court cannot direct for framing or setting up of promotion Rules for creating promotional avenues. It falls within the realms of policy matters. However, as laid down by their Lordships of the Hon’ble Supreme Court in Food Corporation of India and Others versus. Parashotam Das Bansal and others, (2008) 5 Supreme Court Cases 100, the Higher Courts can direct the employer to frame a scheme for providing promotional avenues. Their Lordships have made the following observations:- “This Court in Dr. Ms. O.Z. Hussain 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 - 3 - 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 on 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 avenue for the 'A' category scientists in the non-medical wing of the Directorate." The question also came up for consideration in M/s. Ujagar Prints (III) v. Union of India and Council of Scientific and Industrial Research v. 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 employees 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 Ed. 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- managorial employees and their supervisors". (See : Personnel Management by Dr. Udai Pareek p. 277). There - 4 - cannot be any modern management much less any career planning, man-power 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 he 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 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 Hon’ble Apex Court in A. Satyanarayana and others versus. S. Purushotham and others,(2008) 5 Supreme Court Cases 416 has held that the purpose of promotion is to remove the stagnation and avoid frustration. In view of the law laid down by the Hon’ble Supreme Court in (2008) 5 Supreme Court Cases 100 (supra), the petition is allowed. The respondents are directed to frame a scheme within a period of 10 weeks from today to provide promotional avenues to the category of petitioner i.e. Constable Wireless. There will be no order as to costs. March 26, 2009. (Rajiv Sharma) (rkv). Judge. - 5 -