IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 11807 of 2008 Judgement reserved on: 3.5.2010. Date of decision: June 14, 2010. G.S.Guleria …..Petitioner. Vs. State of H.P. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner : Mrs. Ranjana Parmar, Advocate. For the Respondents : Mr. P.K. Sharma, Addl. Advocate General with Mrs Subh Mahajan, Dy. Advocate General, for respondents No. 1 & 2. Ms. Sunita Sharma, Advocate, for respondent No. 4. Kuldip Singh, Judge. The petitioner in the petition has prayed for quashing of order dated 22.11.2004 Annexure P-7 with a direction to State to hold review Departmental Promotion Committee (for short, DPC) for promotion to the post of Executive Engineer and consider the case of the petitioner against the vacancy of 1991 in accordance with relevant rules and thereafter promote the petitioner with all consequential benefits. It has also been prayed that State may further be directed to consider the case of petitioner for the post of Superintending Whether the reporters of the local papers may be allowed to see the Judgment? …2… Engineer from the due date with all consequential benefits. The appropriate place to the petitioner in the seniority lists of Executive Engineers and Superintending Engineers may also be ordered by quashing earlier seniority lists of Executive Engineers and Superintending Engineers. 2. The case of the petitioner is that he is presently working as Superintending Engineer. He was appointed as Assistant Engineer in H.P. Public Works Department in February 1979. He was promoted as Executive Engineer and joined as such on 13.9.1989. The PWD and Irrigation and Public Health was one Department and was bifurcated in the year 1994. No DPC was convened for making regular promotions to the post of Executive Engineers. Some promotions were made on officiating basis on 26.12.1989, which were quashed by erstwhile Tribunal and the State was directed to convene review DPC for consideration of all eligible officers for promotion to the posts of Executive Engineers on year-wise vacancy basis during the period commencing from 1985 -1993. 3. In pursuance of the directions of the erstwhile Tribunal, vide notification dated 23.8.1997 Annexure A-1, regular promotions were made to the posts of Executive Engineers, but the name of the petitioner was not included in notification dated 23.8.1997. The petitioner was promoted vide notification dated 26.9.2001 Annexure A-3 on regular basis w.e.f. 31.12.1994. The petitioner made representation to the competent authority for considering his case for promotion from the date his juniors were promoted on regular basis, but nothing was done to redress the grievance of the petitioner. …3… Thereafter, the petitioner filed OA No. 1241 of 2004 before the erstwhile Tribunal. On 7.5.2004 erstwhile Tribunal directed that the original application filed by the petitioner be considered as representation to the Principal Secretary (PWD) to the Govt. of Himachal Pradesh, who was directed to decide the same within a period of eight weeks. The Principal Secretary (PWD) rejected the representation of the petitioner vide order dated 22.11.2004 Annexure A-7, which was assailed by the petitioner by way of Original Application. On abolition of the Tribunal, the original application has been transferred to this court and registered as CWP(T) No. 11807 of 2008. 4. The further grievance of the petitioner is that final seniority list of Assistant Engineers as it stood on 16.3.1995 was circulated. In that seniority list, the petitioner appears at Sr. No. 14 and all private respondents have been shown junior to petitioner in the seniority list of Assistant Engineers. The petitioner was promoted on ad hoc basis as Executive Engineer in the year 1989. The department was bound to consider the case of the petitioner for promotion to the post of Executive Engineer from the date vacancy has arisen by convening DPC, but no DPC was convened and the petitioner was promoted on ad hoc basis as Executive Engineer in the year 1989. At the time of promotion of the petitioner on regular basis, relevant instructions and law was not considered. The department was bound to consider the grade of Annual Confidential Reports (for short, ACRs) earned by the petitioner as Executive Engineer on ad hoc basis one step higher. The assessment of the petitioner made by …4… the DPC has not been made in accordance with law and relevant instructions, which has resulted in his supersession as Executive Engineer by his juniors. 5. The petitioner has also alleged that as per relevant instructions, which have been issued by the Personnel Department, the grading to officers as Outstanding, Very-good and Good should not be made mechanically and in case the officer is working at higher assignment then in that event his report is to be stepped by one category in comparison to the officers working on junior assignments. The department while deciding the representation of the petitioner has rejected the instructions dated 16.3.1981 on the ground that these instructions were in force only till 3.11.1991. On this ground alone, the entire action of the respondent- department is without authority or law. 6. The petitioner has also alleged that the assessment qua the petitioner regarding the promotion to the post of Executive Engineer by DPC has not been done in a fair manner. On 24.12.1996 Annexure A-9, the petitioner was promoted on regular basis as Executive Engineer, but in the notification dated 23.8.1997 the name of the petitioner does not figure. The petitioner was assessed in the year 1996 and was found suitable for promotion, but by the impugned notification, the petitioner was superseded by many juniors. On the basis of impugned promotion of juniors, the petitioner was shown below them in the seniority list of Executive Engineers, which has resulted in his supersession to the post of Superintending Engineer. The petitioner has been given arbitrary treatment. The …5… petitioner was promoted as Executive Engineer on ad hoc basis and, therefore, he was entitled for counting the period of ad hoc promotion towards the seniority in the cadre of Executive Engineer and also on the basis of instructions Annexure A-10. It has been alleged that acts of commission and omission of respondents are wrong, illegal, unjust and in violation of Articles 14 and 16 of Constitution of India. 7. The petition was contested by the State by filing reply, wherein by way of preliminary submissions, it has been submitted that post of Executive Engineer is a selection post and as per Recruitment and Promotion Rules the promotion to the post of Executive Engineer is made from the feeder category of Assistant Engineers on merit- cum-seniority basis. On account of some disputes, final seniority list of Assistant Engineers in the erstwhile PWD could not be finalized. The respondent No.2- department had made ad hoc promotions from time to time to the posts of Executive Engineers to run the work. The final seniority list of Assistant Engineers concerning the petitioner was circulated in the year 1978 but meeting of regular DPC could not be convened. The petitioner in the meantime, was promoted as Executive Engineer on ad hoc basis vide order dated 8.9.1989. This ad hoc promotion was made in view of directions of erstwhile Tribunal given in MA No. 370/89 on 18.7.1989 in TA No. 240/86, wherein it has been stated that promotion shall not confer any right to seniority and regular promotion to the person so appointed. 8. The meeting of DPC was held on 14 to 23.12.1995 to consider the matter of promotion of the posts of Executive Engineers against the vacancies pertaining to the year 1985 to 1993 and the …6… promotion orders on the recommendations of DPC were issued on 26.12.1995 on officiating basis. The promotion orders dated 26.12.1993 were quashed by the erstwhile Tribunal on 6.6.1997 in OA No. 174/96 and a direction was given to convene the meeting of review DPC for consideration of all eligible officers for promotion to the posts of Executive Engineer on year-wise basis during the period commencing 1985 to 1993 separately in accordance with instructions/ rules pertaining to rota and quota basis of each category. In these circumstances, the review DPC was held on 23.7.1997 and 21.8.1997 in which the matter of regular promotions to the posts of Executive Engineers against the vacancies of the year 1985 to 1993 was considered and promotion orders on regular basis based upon review DPC were issued on 23.8.1997 Annexure A-1. 9. The petitioner was promoted to the post of Executive Engineer on ad hoc basis in September 1989. The petitioner was found eligible and considered by the DPC in the zone of consideration for regular promotion to the post of Executive Engineer against vacancies of the year 1988 to 1993 year wise. The petitioner could not be recommended for promotion against the available vacancies on account of his low merit and number of vacancies. There was no vacancy w.e.f. 1.1.1994 to 24.7.1994. The cadre of PWD and IPH was bifurcated in two separate departments w.e.f. 27.4.1994 and after 27.4.1994 the matter of promotion against the vacancy was to be considered by the IPH department. 10. The promotion of petitioner to the post of Executive Engineer on ad hoc basis was made as stop gap arrangement in the …7… exigency of work and without following the prescribed procedure for making promotions to the selection posts. The position regarding ad hoc promotion to the posts of Executive Engineer in respect to each candidate including the petitioner was intimated to the DPC and that position was kept in view by the DPC while making evaluation of ACRs. The petitioner was senior to respondents No. 3 to 13 in the seniority list of Assistant Engineers, but post of Executive Engineer is a selection post, therefore, on the basis of merit his juniors superseded him and as such respondents No. 3 to 13 became senior to petitioner as he could not find place for promotion up to 31.12.1993. But later on, the petitioner was promoted as Executive Engineer on the recommendations of DPC w.e.f. 31.12.1994. On the basis of final seniority list of Executive Engineers issued on 11.12.2003, the petitioner was considered by the DPC for promotion to the post of Superintending Engineer and he was accordingly promoted. 11. The petitioner has wrongly compared the assessment of two DPCs. The notification dated 23.8.1997 was issued for promotion against vacancies up to the year 1993, whereas notification dated 24.12.1996 is for promotions against the vacancies pertaining to the year 1996. It has been submitted that for these promotions, ACRs of different years were considered. The State has prayed for dismissal of the petition. The petitioner has not filed any rejoinder. 12. I have heard the learned counsel for the parties. The grievance of the petitioner is that as Assistant Engineer he was senior …8… to private respondents, but they were wrongly promoted on regular basis as Executive Engineers and Superintending Engineers prior to the petitioner. It is also the case of the petitioner that he was promoted on ad hoc basis as Executive Engineer and, therefore, his ACRs while working as ad hoc Executive Engineer are to be considered one step higher. He has also submitted that department has erred in not counting his ad hoc service as Executive Engineer for the purpose of promotion and seniority to the regular post of Executive Engineer and Superintending Engineer. He has relied instructions dated 16.3.1981. 13. On the contrary, it has been submitted on behalf of the State that the instructions dated 16.3.1981 were applicable only for limited period. The petitioner was promoted on ad hoc basis as Executive Engineer in the year 1989. The post of Executive Engineer is a selection post where criteria for promotion is merit-cum-seniority. The petitioner was considered for promotion to the regular post of Executive Engineer from the year 1988 to 1993 year-wise, but because of his low merit, he could not be promoted. The private respondents were better in merit, they were promoted. The DPC considered the ACRs of relevant period of the petitioner and others including the record pertaining to ad hoc service rendered by the petitioner as Executive Engineer. The instructions dated 16.3.1981 were superseded by instructions dated 17.11.1981, therefore, the petitioner was not entitled to consideration of ACR as ad hoc Executive Engineer one step higher. There is nothing on record to …9… show that DPC has mechanically considered the ACRs of petitioner and other officers to the detriment of the petitioner. 14. The State has taken a specific stand that petitioner was not promoted on account of his low merit in comparison to private respondents. The petitioner was promoted on regular basis when he was found fit for promotion as Executive Engineer and Superintending Engineer. The petitioner has not filed any rejoinder to the reply of State, wherein the State has specifically taken a stand that the case of the petitioner was duly considered by the review DPC, but he was not found fit for promotion because of low merit. The petitioner could not have been given the benefit of ad hoc service as Executive Engineer inasmuch as it is the stand of the State that ad hoc promotion of petitioner as Executive Engineer was a stop gap arrangement and such promotion was made without following due procedure. In these circumstances, the petitioner is not entitled to counting of his ad hoc service as Executive Engineer for the purpose of seniority and promotion as Executive Engineer or Superintending Engineer. The petitioner has not imputed specific malafides to any one for not considering his case for regular promotion to the post of Executive Engineer and Superintending Engineer in accordance with instructions and law. 15. It is significant to note that petitioner has prayed for quashing of order dated 22.11.2004 Annexure A-7 and his other prayers are based upon quashing of Annexure A-7. The perusal of Annexure A-7 indicates that petitioner was heard in person. He pressed his claim on the basis of instructions dated 16.3.1981. In …10… Annexure A-7, it has been observed that instructions dated 16.3.1981 are not applicable. The evaluation of ACRs done by the DPC are as per relevant instructions/ procedure. The petitioner before Principal Secretary (PWD) did not project his case that his ACRs were otherwise better in comparison to private respondents for the relevant years. The petitioner has pressed instructions dated 16.3.1981 for assessing his ACRs one step higher, which plea was rejected vide Annexure A-7. No other point was raised by the petitioner before the Principal Secretary (PWD). The petitioner has failed to make out any case for interference. There is no merit in the petition. 16. No other point was urged. 17. As a result of above discussion, the petition fails and is accordingly dismissed. June 14, 2010. ( Kuldip Singh ), (Hem) Judge.