IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.935/2001 Reserved on:28.5.2008 Decided on.27.6.2008 State of Himachal Pradesh. …Petitioner. Versus Vijay Kumar Sharma. …Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the Petitioner : Mr. Ram Murti Bisth, Deputy Advocate General. For the respondent: Mr. Neel Kamal Sood, Advocate. (Per) Rajiv Sharma, J. A challenge has been laid to the order passed by the learned Himachal Pradesh Administrative Tribunal in OA (D) No. 107/1997 decided on 27.4.2001. The brief facts necessary for the adjudication of this petition are that respondent was appointed to the post of Entomological 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 Assistant (Class-III) in the Health Department on 22.2.1980. He preferred an original application before the learned Himachal Pradesh Administrative Tribunal (hereinafter after referred to as ‘the Tribunal’ for brevity sake) seeking the following reliefs: i) “That the respondents may be directed to consider the case of the applicant for providing promotional avenue forthwith; ii) That the respondents may be directed to give a selection grade in the pay scale of Rs. 1410- 2460/- w.e.f. 1.1.1986, to the applicant, as has been given to other categories i.e. Technical or non-Technical employees, under the respondents, forthwith; iii) That the respondents may be directed to give the difference in the wages/pay scale of 570- 1000/- and Rs. 700-1300 w.e.f. 28.2.1980 and Rs. 1410-2460/- and Rs. 2200-4000 w.e.f. 1.1.1986, on the principle of equal pay for equal work, in view of the higher duties functions etc. being performed by the applicant on the higher post of Assistant Entomologist/Entomological, under the respondents; iv) That the respondents may be directed to give interest @ 18% per annum on the arrears of difference in pay scale, as above; v) That the respondents may be directed to give a higher pay scale of Rs. 570-1080 or 680-1120 w.e.f. 1.1.1978 and the pay scale of Rs. 1800- 3200 and Rs. 2000-3500 w.e.f. 1.1.1986, as has been given to other categories, who were enjoying placed in the same pay scale, with 3 that of the applicant, prior to 1.1.1986 respectively; vi) That the cost of the application may also be granted.” The petitioner (hereinafter referred as ‘the State’ for convenience sake) has contested the original application by filing detailed reply. It was primarily contended by the State before the Tribunal by way of pleadings that once the respondent had chosen to be appointed against a particular post, he cannot later on complain about the non-existence of promotional avenues. The Tribunal on the basis of the arguments advanced by the learned counsel for the parties and after going through the record partly accepted the original application. The operative portion of the order dated 27th April, 2001 reads thus: “In view of the foregoing reasons the present application is partly accepted and as a consequence thereof, the respondents are directed to provide promotional avenue to the applicant by creating a post of higher status as was proposed to be done by the respondents without any undue delay. The aforesaid promotional avenue by creating a new post with Recruitment and Promotion Rules, the respondents are directed to do the needful within four months from today so that the applicant is afforded an opportunity to be considered for promotional post. The remaining prayer as discussed above is dis-allowed. The parties, are, however, let to bear their own costs.” 4 The petitioner has laid challenge to the order passed by the Tribunal by way of the present petition. Mr. R.M. Bisht, Deputy Advocate General had strenuously argued that order dated 27.4.2001 is not sustainable in the eyes of law. He also contended that the Tribunal has no jurisdiction to direct the State to create a post and also to frame particular set of Recruitment and Promotion Rules. Mr. Neel Kamal Sood, Advocate appearing on behalf of the respondent had supported the order passed by the Tribunal. We have heard the learned counsel for the parties and perused the pleadings of the parties carefully. The respondent, as noticed above, was appointed as Entomological Assistant (Class-III) on 28.2.1980. It is not disputed by the parties that there are no further promotional avenues available to the respondent. However, Mr. R. M. Bisht, Deputy Advocate General has strenuously argued that as per notification dated 15th December, 1998 (Annexure P-8), the respondent is entitled to get next higher pay scale after completion of 8 years and is also entitled to proficiency step up after putting in 16 years and thereafter an employee is also entitled to be placed in the next higher pay scale in case he continues to serve on the same post. These benefits have been granted to the employees under the scheme called “Assured Career Progression Scheme” which was notified on 15th December, 1998 but has come into force with effect from 1.1.1996. To avail the benefits accruing under ‘the Assured Career Progression Scheme’, one is required to put in at least 8 5 years of service and only thereafter he can be granted the higher pay scale. The employee thereafter is entitled to first proficiency step-up after putting in 16 years of service and a second proficiency step-up after 24 years of service. It is only after putting in 32 years of service that an incumbent is to be placed in the next higher pay scale in the hierarchy of pay scales. However, as far as the promotion is concerned, the employee need not necessarily wait for such a long duration if he otherwise is found eligible and qualified as per the Recruitment and Promotion Rules. This is the vital difference between the promotional avenues to move up in the hierarchy vis-à-vis the ACPS. True it is that the Assured Career Progression Scheme has mitigated the hardship being faced by employees, who have reduced chances of promotion, but the present case is entirely different since in this case the petitioner has no promotional avenue at all. Once the incumbent joins the public service, he has legitimate expectation to be promoted to the higher post. He cannot be permitted to stagnate without promotional avenues for entire service career. At least 2-3 promotional avenues should be available to the incumbent in public employment. It will also reduce frustration of those employees, who have no promotional avenues at all in their entire service career. The Tribunal has also while passing the impugned order taken into consideration the fact that at one time, the Administrative Head of the respondent has taken up the matter with the higher authorities for creation of promotional post i.e. Assistant Entomologist. However, it appears that no decision has been taken on the same. 6 The Tribunal has correctly relied upon the judgment cited in its order to come to a conclusion that the petitioner cannot be permitted to stagnate in a cadre. The findings recorded by the Tribunal to the effect that the petitioner should have at least some opportunities for promotion are upheld. Now, this Court has to consider whether the direction issued by the Tribunal for the creation of post and for framing of the Recruitment and Promotion Rules is justifiable in the facts and circumstances as noticed hereinabove or not? We are of the considered opinion that the Tribunal had no jurisdiction to direct the State to create the post and to frame particular set of Service Rules regulating condition of service. The framing of scheme notified on 15th December, 1998 cannot be assumed and treated as a substitute for promotional avenues. The grant of next higher scale, proficiency step up etc. are having so many conditions attached as noticed hereinabove under the notification dated 15th December, 1998. Their Lordships of the Hon’ble Supreme Court in Food Corporation of India and others versus Parashotam Das Bansal and others, 2008 (2) Scale 205 in a similar situation where there were no channels for promotion in the organization of Food Corporation of India have held as under. “Appellant is a '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 therefor. What is necessary is to 7 provide an opportunity of advancement; promotion being a normal incidence of service. This Court in Dr. Ms. O.Z. Hussain v. Union of India [JT 1989 (9) SC 407 ; 1990 Supp. SCC 688], opined: "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 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 etc. etc. v. Union of India & Ors. [JT 1989 (1) SC 157 ; AIR 1989 SC 972] and Council of Scientific and Industrial Research & Anr. v. K.G.S. Bhatt & Anr. [JT 1989 (3) SC 513 ; 1989 (4) SCC 635]. In the latter decision, this Court held : "It is often said and indeed, adroitly, an organisation public or private does not hire a hand' but engages or employees a whole man. 8 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 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. 9 This Court in State of Tripura & Ors. v. K.K. Roy [2004 (9) SCC 65], upon taking into consideration some of the earlier decisions of this Court, held : "6. It is not a case where there existed an avenue for promotion. It is also not a case where the State intended to make amendments in the promotional policy. The appellant being a State within the meaning of Article 12 of the Constitution should have created promotional avenues for the respondent having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India. Despite its constitutional obligations, the State cannot take a stand that as the respondent herein accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue for promotion, he cannot resile therefrom. It is not a case where the principles of estoppel or waiver should be applied having regard to the constitutional functions of the State. It is not disputed that the other States in India/Union of India having regard to the recommendations made in this behalf by the Pay Commission introduced the Scheme of Assured Career Promotion in terms whereof the incumbent of a post if not promoted within a period of 12 years is granted one higher scale of pay and another upon completion of 24 years if in the meanwhile he had not been promoted despite existence of promotional avenues. When questioned, the learned counsel appearing on behalf of the appellant, even could not point out that the State of Tripura has introduced such a scheme. We wonder as to why such a scheme was not introduced by the appellant like the other States in India, and what impeded it from doing so. Promotion being a condition of service and having regard to the requirements thereof as has 10 been pointed out by this Court in the decisions referred to hereinbefore, it was expected that the appellant should have followed the said principle." Mr. Amarendra Sharan, learned Additional Solicitor General of India, however, submitted that the High Court committed a serious error in holding that the respondents had been stagnating in their posts. Drawing our attention to ground No.21 in the Memo of Appeal filed before the Division Bench of the Calcutta High Court against the judgment of learned Single Judge, it was submitted that there were four promotional avenues available to them, namely, from Assistant Manager to Deputy Manager, from Deputy Manager to Joint Manager, from Joint Manager to Manager and from Manager to Executive Director. It was further submitted that even by reason of introduction of selection grade, about 1/3rd of the officers in the cadre of Assistant Engineer have benefited therefrom. We have noticed hereinbefore the stand taken by the appellant itself in its counter affidavit filed before the Calcutta High Court. When a categorical statement was made therein, we fail to understand as to how the same could have been resiled from. Respondents constitute about one per cent of the total work force. A huge financial benefit has been given to unionized employees constituting 85 per cent strength of the total work force by giving career progression scheme as well as the selection grade. Furthermore, this Court in Civil Miscellaneous Petition No. 19864 of 1989 in Writ Petition No. 1044 of 1984 wherein the appellant was a party directed enforcement of the report of a High Powered Committee in regard to revision of pay scale, additional dearness allowance, pensionary and other benefits etc. Pursuant thereto, a committee was constituted. A final report was submitted by the said Committee on 2.11.1988. As the 11 Central Government did not act thereupon expeditiously, this Court issued certain directions in regard to the implementation of the recommendations made in the report from the dates specified therein. It is really of some significance that the promotional avenues alleged to be existed for the cadre of Assistant Engineers were not taken before the learned Single Judge. A ground was taken in the Memorandum of the Letters Patent Appeal. Even the same does not appear to have been pressed. No affidavit has ever been filed by the appellant making averments of the said fact. Admittedly, a direction was issued by the Andhra Pradesh High Court to the appellant for framing a scheme for medical officers, stands implemented. So far as the contention of the learned counsel that the cadre of Assistant Engineers is not important for the appellant for providing promotional avenue to them is concerned, the same is stated to be rejected. We fail to understand how the cadre of Medical Officers would be important, as like the respondents, they also do not contribute towards the main functions of the appellant. Such a plea even otherwise is wholly untenable. An employee is an employee. How the employees would be structured is undoubtedly within the realm of the statutory authority but by reason thereof, it cannot tinker with their essential fundamental right. We wish such a plea had not been raised by the appellant before us. So far as introduction of grant of selection grade is concerned, the same does not provide for a promotional scheme. It is available to a limited number of employees. By reason thereof a promotional scheme cannot be said to have been framed. The scheme of Accelerated Career Progression is distinct and different from grant of selection grade. We have noticed 12 hereinbefore that although such a provision has been made for the unionized employees but even then they are also entitled to grant of selection grade as well.” The judgment in Food Corporation of India and others versus Parashotam Das Bansal and others, 2008 (2) Scale 205 has been considered by their Lordships of the Hon’ble Supreme Court in A. Satyanarayana and others versus S. Purushotham and others, 2008 (6) Scale 563. Their Lordships have held as under: “The Superior Courts, while exercising their power of judicial review, must determine the issue having regard to the effect of the subordinate legislation in question. There must exist a rational nexus between the impugned legislation and the object of promotion. Promotions are granted to a higher post to avoid stagnation as also frustration amongst the employees. This Court, in a large number of decisions, has emphasized the necessity of providing for promotional avenues. [See Food Corporation of India and Ors. v. Parashotam Das Bansal and Ors. [Civil Appeal No.991 of 2008 decided on 5.2.2008]. The State, keeping in view that object, having found itself unable to provide such promotional avenue, provided for the scheme of Accelerated Career Progress (ACP). The validity and effect of the impugned legislation must be judged keeping in view the object and purport thereof. This Court would apply such principle of interpretation of statute which would enable it to subserve the object in place of subverting the same. To the said extent, the rule maintain a birthmark which runs counter to the decisions of this Court in Dwarka Prasad & Ors. v. Union of India & Ors. [(2003) 6 SCC 535]. 13 Although mere chance of promotion is not a fundamental right, but right to be considered therefor is. In that view of the matter, any policy whereby all promotional avenues to be promoted in respect of a category of employees for all time to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India.” Consequently, in view of the observations made hereinabove and the law settled by their Lordships of the Hon’ble Supreme Court in cases cited supra, the order of the Tribunal is accordingly modified and now the petitioner-State shall frame a scheme for providing promotional avenues to the respondent within a period of eight weeks from today. The writ petition is disposed of accordingly. There shall be no order as to costs. (Deepak Gupat), J. (Rajiv Sharma), J. 27.6.2008 *Awasthi*