IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.:2848/2008 Decided on:10.4.2009 Bhumi Chand. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes For the petitioner : Mr. Ranjan Sharma, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Vikas Rathore, Deputy Advocate General for respondents No.1 and 2. Rajiv Sharma, J. The petitioner was appointed as Mining Inspector on 11.9.1974. He was confirmed on 1.4.1980. The next higher post of Mining Inspector is Mining Officer. The post of Mining Officer as per the Recruitment and Promotion Rules dated 2.7.1976 was to be filled up 100% by direct recruitment. However, the amendment was carried on 19.2.1987 whereby 25% posts of Mining Officers were to be filled in by promotion from amongst Mining Inspectors with at least three years service and having at least the educational qualification as B.Sc. (Geology) from the recognized University and the rest of 75% by direct recruitment. There are eight 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 sanctioned posts of Mining Officers. The respondent-department has also filled up posts of Mining Officers by way of deployment. Mr. Ranjan Sharma, Advocate has strenuously argued that his client is stagnating on the post of Mining Inspector for at almost three decades. He then contended that every employer has to ensure that there are two to three avenues for promotion to increase efficiency in public service. He lastly contended that the rules cannot be framed to make the promotional avenues illusory by the employer. Mr. R.K. Sharma, learned Senior Additional Advocate General has submitted that it is not a case where the petitioner has no promotional avenues, however, since he is not possessing the essential qualification of B.Sc. (Geology), he could not be promoted. I have heard the learned counsel for the parties and perused the record carefully. The petitioner was appointed as Mining Inspector on 11.9.1974. He was confirmed on 1.4.1980. The post of Mining Officer was initially required to be filled 100% by way of direct recruitment. It was in the year 1987 that a decision has been taken to fill up 25% posts of Mining Officer by promotion. There are eight sanctioned posts of Mining Officer. According to amended Recruitment and Promotion Rules, two posts of Mining Officers were required to be filled from the Mining Inspector. It is not in dispute that the petitioner does not possess the qualification of B.Sc. (Geology). Their Lordships of the Hon’ble Supreme Court have repeatedly held that an employer must ensure sufficient promotional avenues to increase efficiency in public service. The petitioner has been stagnating on the same post for almost three decades. Though there are promotional avenues available to the petitioner on the basis of the amendment carried 3 on 19.2.1987 in the Recruitment and Promotion Rules to the post of Mining Inspector, however, he cannot be considered as he does not possess the minimum qualification of B.Sc. (geology). Their Lordships of the Hon’ble Supreme Court in A. Satyanarayana and others versus S. Purushotham and others, (2008) 5 SCC 416 have held that promotion chances cannot be foreclosed forever and if it happens, it violates Articles 14 and 16 of the Constitution of India. The State cannot put a cap on promotion for the entire service period. Their Lordships have held as under: “24. The High Court, therefore, in our opinion, was not wholly correct when it opined that a policy decision cannot be a subject matter of judicial review. If the State has the power to fix a quota, the Rule underlying the legislative policy must stop at that and the necessary consequences thereof must ensue. Indisputably, again although the State was entitled to provide for quota as also a guideline as to how the roster should work out itself, but thereby it cannot be permitted to put a cap on promotion for the entire service period. 25. While saying so, we are not unmindful of the legal principle that nobody has a right to be promoted; his right being confined to right to be considered therefor. 27. However, such a Rule must apply to both the groups. Promotion to a higher post from the officers of a particular cadre would depend upon a large number of factors - a person may retire; he may be departmentally proceeded against, he may be sent on deputation; he may resign; Cessation of employment, thus, may be on various grounds. If the number of posts is limited despite uncertainty with regard to arising of any vacancy on any higher post, the validity of such a rule would be open to question. 28. The Superior Courts, while exercising their power of judicial review, must determine the issue 4 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.” In the present case the petitioner is not possessing the essential qualification as per the Recruitment and Promotion Rules for the post of Mining Officer, he cannot be promoted in his entire service period. In these circumstances, it was necessary for the employer to explore the possibilities of providing promotional avenues to the petitioner and similarly situate persons. The Apex Court in Food Corporation of India and others versus Parashotam Das Bansal and others, (2008) 5 SCC 100 has held that if there are no promotional channels in respect of any particular group of officers resulting in stagnation over long years, the higher courts can direct the Government to make a scheme for providing promotional avenues. Their Lordships have held as under: “9. The 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 5 right to be considered therefor. What is necessary is to provide an opportunity of advancement; promotion being a normal incidence of service. 12. 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. 13. 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.” Accordingly, the petition is allowed. The respondents are directed to frame a scheme for providing promotional avenues to the post of Mining Inspector. The modalities for framing and implementing the scheme is left to be decided by the respondent-state. The needful be done within a period of eight weeks from today. There will, however, be no order as to costs. 10.4.2009 (Rajiv Sharma ), J. *awasthi*