IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 14272 of 2008. Decided on: 06.04.2010. __________________________________________________________ Udham Singh and Others. … Petitioners. Versus State of Himachal Pradesh and anther. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the petitioners : Ms. Ranjana Parmar, Advocate. For the Respondents : Mr. Rajinder Dogra, Additional Advocate General. Rajiv Sharma, J.: Petitioners are working in various capacities with the respondents-department, namely, Mechanics, Electricians etc. Admittedly, there are no promotional avenues provided to them. Petitioners are stagnating on the same post for number of years. It is settled law by now that there should be avenues for promotion for every employee to improve public service and to reduce stagnation. Their Lordships of Hon’ble Supreme Court in Food Corporation of India and others versus Parshotam Das Bansal and others (2008) 5 SCC 100 have held that the higher Courts can direct for framing of a scheme for providing avenues for promotion in case no 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - provisions have been made in the Recruitment and Promotion Rules. Their Lordships have held as under (paras 9, 12 and 13):- “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 provide an opportunity of advancement; promotion being a normal incidence of service. 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.” Similarly, their Lordships of the Hon’ble Supreme Court in A. Satyanarayana and others versus S. Purushotam and others, (2008) 5 SCC 416 have held that promotion chances cannot be foreclosed for ever and such policy decision is ultra vires the Constitution of India. Their Lordships have held that the purpose of promotion is to remove stagnation and avoid frustration amongst the employees. Their Lordships have held as under (paras 28, 29 and 30):- - 3 - “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 emphasised the necessity of providing for promotional avenues. (See Food Corporation of India v. Parashotam Das Bansal). 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. Whereas, on the one hand, it has been contended before us that all future promotions that is promotion from the post of Assistant Secretary upwards are given on merit, on the other hand, a cap of 10 posts has been made for all the four categories of posts. It is one thing to say that the State evolves a policy of prescribing a reasonable quota at all levels of the promotion but it would be another thing to say that while totally ignoring the question of birthmark, a few posts shall be identified only on the basis of the original posts held by the employee concerned. To the said extent, the rule maintains a birthmark which runs counter to the decision of this Court in Dwarka Prasad v. Union of India. Although mere chance of promotion is not a fundamental right, but right to be considered therefor - 4 - 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 times to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India.” The Assured Career Progression Scheme (ACPS) cannot be termed as a substitute to regular promotion. Accordingly, in view of the observations made hereinabove, the petition is allowed. Respondents are directed to frame a scheme for providing promotional avenues to the petitioners within a period of ten weeks from today. There shall, however, be no order as to costs. (Rajiv Sharma), Judge. April 06, 2010. (sck).