IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 8038/2008 Reserved on: 24.6.2011 Decided on: 29.6. 2011 _____________________________________________ S.K. Jain. …Petitioner. Versus State of H.P. and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. P.P. Chauhan, Advocate. For the Respondent: Mr. Vikas Rathore, Dy. A.G. with Mr. R.P. Singh, Asstt. A.G. for respondents No. 1 and 2. None for respondent No.3. ____________________________________________________ Justice Rajiv Sharma, Judge. Petitioner joined as Lecturer in Sanatan Dharma Bhargava College, Shimla on 7.8.1967. State Government had taken a conscious decision to take over the college on 15.9.1977. The Government issued instructions on 22.4.1982 for granting benefit of the period of service of the employees in the erstwhile College towards pension, gratuity and other benefits. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 These instructions were clarified on 10.8.1982. However, the same were superseded by the State on 16.5.1983. This decision was assailed by M.L. Sharma and others by way of T.A. No. 636/1986. The same was allowed by the erstwhile Himachal Pradesh Administrative Tribunal on 16.5.1983. State preferred an SLP against the decision dated 16.5.1983, which was dismissed by the Hon’ble Supreme Court on 2.12.1991. Thereafter, the decision was taken to provide promotional avenues to the petitioner and similarly situate persons to the post of Principal in the ratio of 18:1 upto 20.5.1981 and thereafter in the ratio of 17:1. Petitioner made several representations for considering him for promotion to the post of Principal. These representations are dated 9.3.1998, 19.12.1998, 3.8.2000 and 28.7.2001. 2. The Departmental Promotion Committee met on 5.3.1998. However, the petitioner was not considered purportedly on the ground that he has not qualified the departmental examination though Mr. P.P. Chauhan has argued that on 5.3.1998, the petitioner had qualified the departmental examination. Thereafter the review Departmental Committee was held on 18.11.1998. The next Departmental Promotion 3 Committee, as per the pleadings, was convened on 15.6.1999. Case of the petitioner was not considered only on a flimsy ground that the record of the petitioner was not received. In other words, petitioner was overlooked for promotion to the post of Principal. Thereafter, next Departmental Promotion Committee met on 16.10.1999 whereby respondent No.3 was promoted to the post of Principal. Respondent No.3 had not qualified the departmental examination at that time, but she had acquired the age of 55 years. 3. Mr. P.P. Chauhan has vehemently argued that the action of the respondents not to consider the petitioner for promotion to the post of Principal in the Departmental Promotion Committee held on 5.3.1998 is illegal, arbitrary and thus, violative of Articles 14 and 16 of the Constitution of India. According to him, the petitioner should have been considered for promotion by summoning the record well in time before the Departmental Promotion Committee was convened on 15.6.1999. He has also argued that since the petitioner had qualified the departmental examination before 5.3.1998, his case should have been considered in the Departmental Promotion Committee held on 5.3.1998. He finally argued that the case of the petitioner was not 4 considered in the Departmental Promotion Committees held during 1998 and 1999 to unduly favour respondent No.3, who had not qualified the departmental examination and was permitted to acquire the age of 55 years to enable her to get exemption from passing departmental examination. Respondent No.3 was promoted to the post of Principal on 16.10.1999. 4. Mr. Vikas Rathore, learned Deputy Advocate General has strenuously argued that since the petitioner had not qualified the departmental examination, he could not be considered in the Departmental Promotion Committee held on 5.3.1998. He then contended that the case of the petitioner could not be considered in the Departmental Promotion Committee held on 15.6.1999 for want of record and in the Departmental Promotion Committee held on 16.10.1999, the petitioner was ignored on the basis of merit. 5. I have heard the learned counsel for the parties and have perused the record carefully. 6. Mr. Vikas Rathore has produced the original record before the Court for its perusal. Petitioner has been overlooked for promotion in the Department Promotional Committee held on 5.3.1998 on the ground 5 that the petitioner has not qualified the departmental examination. Thereafter, petitioner was to be considered for promotion to the post of Principal in the Departmental Promotion Committee held on 15.6.1999. I have perused the record of the Departmental Promotion Committee, which was convened on 15.6.1999. It is borne out from the record at page 175 that the vigilance clearance certificate was issued qua the petitioner and one Sh. Balbir Singh on 12.6.1998. The Commissioner-cum-Secretary (Education) had sought integrity certificate of all the eligible candidates, who were to be considered for promotion to the post of Principal (College Cadre) on 19.3.1999. The Director of Education in sequel thereto enclosed the necessary details of the petitioner, including integrity certificate on 27.3.1999. The Director of Education informed the Commissioner-cum-Secretary (Education) that particulars/copies of requisite certificates of the petitioner have already been sent to the office on 4.5.1999. The Commissioner-cum-Secretary (Education) has sought the integrity certificate of the petitioner from the Director of Education again on 18.5.1999. This document is at page 329 of the record. However, surprisingly in Departmental Promotion Committee held 6 on 15.6.1999, case of the petitioner has not been considered only on the ground that integrity/vigilance clearance certificate of the persons belonging to S.D.B. cadre was not made available. In view of this, one post of Principal belonging to S.D.B. cadre was kept vacant till the receipt of the integrity certificate. In fact, as is evident from the above enumerated facts, the integrity/vigilance clearance certificate had already been supplied by the Director of Education. 7. The Court is of the considered view that since the integrity certificate had already been issued to the petitioner in 1998, as discussed hereinabove, his case was required to be considered for promotion to the post of Principal (College Cadre) on that basis instead of keeping one post vacant belonging to S.D.B. cadre. 8. Intriguingly in the case of Sh. R.K. Goel, the records were summoned by the Commissioner-cum- Secretary (Education) from the Directorate for considering him for the post of Principal (College Cadre) by way of telephone on 27.8.1998. This procedure was also required to be followed in the case of petitioner. 9. Further startling revelation, which has come in the light from the record, is that though the petitioner has been over looked for promotion for want of 7 necessary documents, the Director of Education had supplied the necessary particulars to the Commissioner-cum-Secretary (Education) on 23.7.1999 after convening the Departmental Promotion Committee. This letter is at page 346 of the record. According to this communication, petitioner had already qualified the departmental examination and respondent No.3, who was junior to the petitioner, had not qualified the departmental examination. 10. What emerges from the discussions and observations made hereinabove is that the necessary record was sent to the State by the Director of Education before convening the Departmental Promotion Committee on 15.6.1999 and despite that letter dated 18.5.1999 was written by the Commissioner-cum-Secretary (Education). What was accepted from the Director of Education was to inform the Commissioner-cum-Secretary (Education) that the record has already been sent and on that basis the Departmental Promotion Committee had to consider the case of the petitioner. The Director of Education in a most mala fide manner again supplied the record to the State on 23.7.1999 after holding of the Departmental Promotion Committee. This action of the Director of 8 Education was actuated with mala fide and bias has been taken only to help respondent No.3 at the cost of the petitioner. 11. Respondent-State has waited for respondent No.3 to cross the age of 55 years to enable her to get exemption from the departmental examination. It is in these circumstances that the petitioner has been over looked in the Departmental Promotion Committee held on 16.10.1999 whereby respondent No.3 has been selected against point No.19. It is now well settled that all the posts cannot be bunched together and the Department has to take into consideration the vacancies which had become available on year to year basis. If the petitioner was eligible in the year 1998 and the vacancy was available in that year, his case was to be considered separately for 1998 instead of clubbing this post against the vacancy which became available in the year 1999 (See: (1995) 4 SCC 246). Petitioner had right to be considered for promotion under Articles 14 and 16 of the Constitution of India and the same could not be over looked by taking a flimsy ground that the record was not available. Though in fact, the record was available, as discussed hereinabove. 9 12. Their Lordships of the Hon’ble Supreme Court in Union of India and another versus Hemraj Singh Chauhan and others, (2010) 4 SCC 290 have held that Government is a Welfare State and is supposed to act as a model employer. Their Lordships have further held that right of an eligible employee to be considered for promotion is virtually a part of his fundamental right under Article 16 and guarantee of fair consideration for promotion flows from guarantee of equality under Article 14 of the Constitution of India. Their Lordships have further held that legitimate expectation for being considered for promotion defeated due to inaction on the part of State Government in conducting cadre review in time despite reminders from Central Government. Their Lordships have further held that delay has deprived employees of their right to be considered fairly. Their Lordships have held as under: “35. The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a welfare State. 36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 10 16 virtually flows from guarantee of equality under Article 14 of the Constitution.” 13. The Court is of the considered view that the case of the petitioner has been over looked arbitrarily to unduly favour respondent No.3 and in these circumstances, respondent-State can be directed to consider the case of the petitioner from the retrospective date as per the law laid down by their Lordships of the Hon’ble Supreme Court in K. Madhavan and another versus Union of India and others, (1987) 4 SCC 566. Their Lordships have held as under: “15. There can be no doubt that if the meeting of the DPC scheduled to be held is arbitrarily or mala fide cancelled without any reasonable justification therefor to the prejudice of an employee and he is not considered for promotion to a higher post, the Government in a suitable case can do justice to such an employee by granting him promotion or appointing him to the higher post for which the DPC was to be held, with retrospective effect so that he is not subjected to a lower position in the seniority list. But, if the cancellation or postponement of the meeting of the DPC is not arbitrary and is supported by good reasons, the employee concerned can have no grievance and the Government will not be justified in appointing the employee to the higher post with retrospective effect. An employee may become eligible for a certain post, but surely he cannot claim appointment to such post as a matter of right. 17. Thus, it appears from para. 9 of the note extracted above that three vacancies were to be filled by non-deputationists DSPs. otherwise the question of 11 non-availability of non-deputationist DSPs with the requisite period of service would not have been mentioned. In the counter-affidavit of respondents 1 and 2, it is also stated that at the relevant time no departmental DSP had eight years' service in that grade and. therefore, all the three vacancies then available were required to be filled by deputation of suitable State Police Officers. It is, therefore, apparent that the three vacancies were meant to be filled by non- deputationist DSPs and not by deputationists, but as non-deputationist DSPs with the requisite period of service were not available, the vacancies were proposed to be filled by the deputationist DSPs. It is true that the meeting of the DPC was to be held on 13-10-1970 but the Director of CBI appears to have considered that as the vacancies were meant for the non-deputationist DSPs and as two of such DSPs would become eligible for promotion in January and March, 1971, he postponed the meeting of the DPC scheduled to be held on 13-10- 1970. We do not find any arbitrariness in the decision of the Director of CBI postponing the meeting of the DPC till after March. 1971 when two non-deputationist DSPs would become eligible for promotion. There was, therefore, ample justification for the postponement or cancellation of the meeting of the DPC Respondent 5 might have been eligible for being considered for appointment to the post of SP in July, 1970, but he had no right to claim such consideration when the vacancies were meant for non-deputationist DSPs. In our opinion, therefore, the Government had no reasonable justification to contend that the postponement of the DPC was arbitrary and highhanded. In July, 1971 also respondent 5 was not found suitable by the DPC. It was only when the Senior Board found him suitable in July, 1972 and recommended him for appointment to the post of SP that respondent 5 was appointed on October 28, 1972 to the post of SP, CBI. As the foundation of the 12 appointment of respondent 5 to the post of SP with retrospective effect from 21-10-1971 (FN), namely, the postponement of the meeting of the DPC in October, 1970 arbitrarily, is shaken to a great extent, there was no question of any injustice done to respondent 5. The retrospective appointment or promotion to a post should be given most sparingly and on sound reasoning and foundation. In the instant case, we do not find that there was any justification for the appointment of respondent 5 to the post of SP in the CBI with retrospective effect from 21-10-1971 (FN) so as to make him senior to the petitioners.” 14. Their Lordships of the Hon’ble Supreme Court in Baij Nath Sharma versus Hon’ble Rajasthan High Court at Jodhpur and another, (1998) 7 SCC 44 have held that retired employee can also be given retrospective promotion if any of his juniors had been given promotion from a date prior to his superannuation. Their Lordships have held as under: “6. The appellant could certainly have a grievance if any of his juniors had been given promotion from a date prior to his superannuation. It is not the case here. From the promotional quota, four promotions were made only on 30/12/1996, i.e., after the appellant had retired. Those promoted were given promotions from the dates the orders of their promotions were issued and not from the dates the posts had fallen vacant. It is also the contention of the High court that these four officers, who were promoted to the RHJS, were senior to the appellant as per the seniority list. The question which falls for consideration is very narrow and that is, if under the rules applicable to the appellant promotion was to be given to him from the date the post fell 13 vacant or from the date when order for promotion is made. We have not been shown any rule which could help the appellant. No officer in the RJS has been promoted to the RHJS prior to 31/5/1996 who is junior to the appellant. Further decision by the Rajasthan High court has been taken to restore the imbalance between the direct recruits and the promotees which, of course, as noted above, is beyond challenge. 8. It is regrettable because of the inaction on the part of the High court that recruitment from the Bar could not be made in time which created an imbalance in the service and ultimately it were the appellant and officers similarly placed who suffered. After having put in long years of service, it is the seniority and promotion which an officer looks forward to. He expects he is given due promotion in time. Non-promotion may be an incidence of any service. But here the appellant has been deprived of his promotion without any fault of his. The High court said that it might be a sad state of affairs that the name of the appellant was not considered for promotion till he retired. The High court may feel anguished but it gives no comfort to the appellant. At least for the future, such an unfortunate thing should not happen to any other officer similarly situated. This malaise which abysmally afflicts any service when there is recruitment from different sources crops up in one form or the other with great disadvantage to one or the other. But then the service is not constituted merely for the benefit of the officers in the service but with a certain purpose in view and in the present case, for dispensing justice to the public at large. It is not at all advisable to keep any post in the judiciary vacant for days when the courts are burdened with arrears and the litigants are the ones who suffer. We expect the High courts to be vigilant and to fill up the posts in the direct quota in time and if the Bar quota cannot be filled for any reason for no fault of the promotee officers, their case for promotion should not 14 be kept pending till some of them even superannuate. When the process for recruitment from the Bar begins and it is expected that posts for the direct quota will be filled up soon, during the intervening period, the officers in the subordinate service can be given ad hoc. promotions without their right to claim seniority over direct recruits, who may join later. Functioning of the courts must not stop.” 15. In normal circumstances, as a general principle, directions were required to be issued to respondents No.1 and 2 to consider the case of the petitioner for promotion to the post of Principal (College Cadre), however, taking into consideration the manner in which the entire matter qua the petitioner has been dealt with by respondents No.1 and 2 coupled with the fact that 12 years have gone by when the Departmental Promotion Committee was held on 15.6.1999, mandamus is required to be issued to the respondents to promote the petitioner as Principal (College Cadre) from the date his juniors were promoted. 16. Their Lordships of the Hon’ble Supreme Court in Comptroller and Auditor-General of India, Gian Prakash, New Delhi and another versus K.S. Jagannathan and another, (1986) 2 SCC 679 in a proper case, the High Court can compel the performance in a proper and lawful manner of the 15 discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion. Their Lordships have held as under: “18. The first contention urged by learned Counsel for the Appellants was that the Division Bench of the High Court could not issue a writ of mandamus to direct a public authority to exercise its discretion in a particular manner. There is a basic fallacy underlying this submission - both with respect to the order of the Division Bench and the purpose and scope of the writ of mandamus. The High Court had not issued a writ of mandamus. A writ of mandamus was the relief prayed for by the Respondents in their writ petition. What the Division Bench did was to issue directions to the Appellants in the exercise of its jurisdictions under Article 226 of the Constitution. Under Article 226 of the Constitution, every High Court has the power to issue to any person or authority, including in appropriate cases, any Government, throughout the territories in relation to which it exercises jurisdiction, directions, orders, or writs including writs in the nature of habeas corpus, mandamus, quo warranto and certiorari, or any of them, for the enforcement of the Fundamental Rights conferred by Part III of the Constitution or for any other purpose. In Dwarkanath v. Income-Tax Officer, Special Circle, Kanpur, (1965) 3 SCR 536, 540 : (AIR 1966 SC 81 at P. 84) this Court pointed out that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative 16 writs as understood in England, such wide language being used to enable the High Courts "to reach injustice wherever it is found" and "to mould the reliefs to meet the peculiar and complicated requirements of this country." In Hochtief Gammon v. State of Orissa, (1976) 1 SCR 667,676: (AIR 1975 SC 2226 at p. 2232) this Court held that the powers of the courts in England as regards the control which the Judiciary has over the Executive indicate the minimum limit to which the courts in this country would be prepared to go in considering the validity of orders passed by the Government or its officers. 20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.” 17 17. This judgment has been relied upon by their Lordships of the Hon’ble Supreme Court in Badrinath versus Government of Tamil Nadu and others, (2000) 8 SCC 395 whereby their Lordships have issued directions to the respondents to promote an Officer to a super time scale. Their Lordships have held as under: “88. We may, however, point out that it is not as if there are no exceptions to this general principle. The occasions where the Court issued a writ of certiorari and quashed an order and had also issued a mandamus at the same time to the State or public authority could be very rare but we might emphasise that the power of this Court to mould the relief in the interests of justice in extraordinary cases cannot be doubted. In Comptroller and Auditor General of India v. K. S. Jagannathan, (1986) 2 SCC 679 : (AIR 1987 SC 537