IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 10248 of 2008 Date of decision: 13.05.2011 ________________________________________________________________ Dr. D.K. Verma. .....Petitioner. Versus The State of H.P. & another. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. ________________________________________________________________ For the petitioner: Ms. Ranjana Parmar,Advocate. For the respondents: Mr. Anil Jaswal, Deputy Advocate, General. V.K. Sharma, J. (Oral). The petition has been filed on the following prayers vide para 7(i) and (ii): “7 (i) That the notification dated 19.9.2003 may be declared legal and valid and the applicant may be held as Principal for all intents and purposes with all consequential benefits. (ii) That the impugned notification dated 7.10.2003 (A-13) and dated 23.10.2003 (A15) may be quashed and set aside.” 2. In reply, on behalf of respondent No. 1, the following stand has been taken vide para 3 of the preliminary submissions: “2. In reply to this para, it is submitted that the applicant after convening the DPC meeting, he was promoted to the post of Principal. However after issuing the order, it has come to the knowledge of the Government that some facts which were mandatory were not taken into consideration such as being a selection post a panel has to be drawn of at least three persons who fall within the zone of consideration which has not been done, passing of 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ...2... the departmental examination is essential for consideration to the said post. While making promotion, the overall teaching experience has to be kept in view of all persons who fall in the zone of consideration in order to maintain the prestige of the Institution and standard of teaching. Moreover there 14 departments/faculties in the college but the post of Professor is not created in all the department/faculties and it will be discriminatory to consider only Professor. Since it will violate the principle of equal opportunity to other senior person working against the post of Reader/Senior Lecturer. The matter was submitted to the competent authority in the Government and thereafter it was decided to cancel the promotion order. A review DPC was convened on 4.11.2003 and none was found eligible for promotion to the post of Principal.” 3. It is further averred as under vide para 2 of the supplementary affidavit filed in terms of order dated 28.12.2010: “2. That brief facts of the case are that present petitioner Dr. D.K. Verma, Professor had been recommended for promotion to the post of Principal by the Departmental Promotion committee (DPC) in the meeting held on 10.09.2003 (A copy of the minutes of the said DPC is annexed at Annexure A-I). Though, based on this DPC orders for his promotion to the post of Principal issued vide notification No. Ayu. Kha(9)-1/2002 dated 19.9.2003, however in the meantime certain new facts which had not been placed before the Departmental Promotion Committee came to the knowledge of the Department, where after the petitioner was directed not to assume his duties vide this department letter No. Ayur.Kha(9)-1/2002 dated 20.9.2003 (A copy is annexed at Annexure R-II). The following deficiencies were not brought to the notice of DPC: a) Dr. D.K. Verma's name was only considered whereas as per rules for selection post at least three persons should have been considered. b) Dr. Dr. K. Verma has not passed departmental examination in any capacity. c) When the DPC was convened for the post of Principal, the aspect that he has not passed departmental examination was not incorporated in the Memo. Hence, this palpable mistake occurred. This is due to wrong presentation of facts by the office. For this stage-wise responsibility needs to be fixed. Further this fact was not brought out before the DPC which met on 10.9.2003. Accordingly, Dr. D.K. Verma was asked not to join his duties. He, however, submitted his joining report ...3... on 20th September, 2003 which was not accepted by the competent authority.” 4. There is no reply on behalf of respondent No. 2. However, at the time of hearing, reply filed on behalf of respondent No. 1 is also adopted by respondent No. 2. 5. Vide Notification dated 19.09.2003, Annexure A-9, the petitioner was promoted as Principal, Rajiv Gandhi Postgraduate Government Ayurvedic College, Paprola, District Kangra, Himachal Pradesh. The post is Class-I (Gazetted) carrying pay scale of ` 1200-16350/- (Revised). Accordingly, he submitted joining report dated 20.09.2003, Annexure A-10. However, strangely enough, vide communication dated 20th September, 2003, Annexure A-11, it was directed that the petitioner “shall not resume his duty till further orders as Principal of the College”. Thereafter, vide Notification dated 7th October, 2003, Annexure A-13, respondent No. 2 was appointed as Principal of the aforesaid College on officiating basis. Ultimately, orders of promotion of the petitioner as Principal were cancelled vide Notification dated 23rd October, 2003, Annexure A-15. Being aggrieved, he filed an Original Application (O.A.) in the erstwhile H.P. State Administrative Tribunal, which on abolition of the said Tribunal has been transferred to this Court and registered as CWP(T) No. 10248 of 2008. 6. The first and foremost ground pressed into service by the petitioner against the impugned Notification dated 23rd October, 2003, Annexure A-15, whereby orders of his promotion as Principal were cancelled, is that the same is in utter violation of the principles of ...4... natural justice as he was not afforded an opportunity of being heard before canceling his promotion. There is no explanation on behalf of the respondents in this regard. Thus, on the face of it, the impugned Notification dated 23rd October, 2003, Annexure A-15, being in violation of the principles of natural justice is liable to be quashed on this score alone. 7. The averments set up on behalf of respondent No. 1 vide para 3 of the preliminary submissions and para 6(v) on merits are self contradictory. Whereas, in para 6(v) on merits it is stated that “the applicant joined his duties on fabricated document i.e. photocopy of the promotion order, which is highly illegal”, in para 3 of the preliminary submission it is stated that “however after issuing the order, it has come to the knowledge of the Government that some facts which were mandatory were not taken into consideration......”. The so called “facts” mentioned in para 2 of the supplementary affidavit which stands already extracted hereinabove are as under: “a) Dr. D.K. Verma's name was only considered whereas as per rules for selection post at least three persons should have been considered. b) Dr. Dr. K. Verma has not passed departmental examination in any capacity. c) When the DPC was convened for the post of Principal, the aspect that he has not passed departmental examination was not incorporated in the Memo. Hence, this palpable mistake occurred. This is due to wrong presentation of facts by the office. For this stage-wise responsibility needs to be fixed. Further this fact was not brought out before the DPC which met on 10.9.2003. Accordingly, Dr. D.K. Verma was asked not to join his duties. He, however, submitted his joining report on 20th September, 2003 which was not accepted by the competent authority.” 8. Insofar as the ground (a) is concerned, admittedly the petitioner was the only Professor in the College. However, no fault ...5... can be found with him on this score. In case, there was only one Professor, he alone could have been considered for promotion to the post of Principal in terms of the Recruitment and Promotion Rules (in short “R & P Rules”), Annexure A-2. With regard to passing of departmental examination, suffice it to say that there is no such requirement in the R & P Rules. 9. Thus, it is manifest that the promotion orders of the petitioner as Principal of the aforesaid College issued vide Notification dated 19.9.2003, Annexure A-9, were nullified on absolutely extraneous considerations and that too without adhering to the principles of natural justice and as such cancellation thereof vide impugned Notification dated 23rd October, 2003, Annexure A-15, is liable to be quashed, entitling the petitioner to all the consequential benefits in terms of Notification dated 19.9.2003, Annexure A-9. Ordered accordingly. Consequently, there shall be a direction to respondent No. 1 to implement this judgment within three months from the date of production of copy of the same by the petitioner. 10. In view of the above, the petition stands disposed of, so also pending CMP(s), if any. Copy dasti. (V.K. Sharma) Judge 13th May, 2011 (virender)