IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP–T No. 2548/2008 Reserved on :4.8.2009 Decided on:15.10. 2009 Tilak Raj …Petitioner. Versus Himachal Pradesh Agro Industry Corporation Limited and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the Petitioner : Mr. Bhuvnesh Sharma and Mr. Ramakant Sharma, Advocates. For the Respondents : Mr. Atul Jhingan, Advocate. Rajiv Sharma, J. The petitioner’s services were regularized as Surveyor on 21.8.1984. He was promoted to the post of Junior Engineer (Civil) on 6.8.1992. The post of Junior Engineer is in feeder category to the post of Assistant Engineer with qualifying service of seven years. The petitioner had become eligible in the year 2000 for promotion to the post of Assistant Engineer. He made representation seeking promotion on 9.4.2003. The same was rejected by the Managing Director of the respondent- 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 corporation on 13.2.2004. The petitioner has been placed in the higher pay scale after the completion of eight years under the Assured Career Progression Scheme (ACPS) introduced by the Government of Himachal Pradesh with effect from 1.1.1996. The precise case of the petitioner is that after the superannuation of Sh. P.C. Bhimta one post of Assistant Engineer has become available and he should have been considered against the same. The case of the respondent-corporation is that no post of Assistant Engineer is available nor there is any justification for appointing another Assistant Engineer in the respondent-corporation. The post of Assistant Engineer was upgraded to that of Executive Engineer and was made personal to incumbent Sh. P.C. Bhimta during the year 1998. It is admitted fact that Sh. P.C. Bhimta has superannuated on 30.4.2001. Similarly, the post of Junior Engineer occupied by Sh. Jawahar Singh Nekta was temporarily upgraded as Assistant Engineer by making it personal to the incumbent during May, 1999. Mr. Bhuvnesh Sharma, Advocate has vehemently argued that his client has right to be considered for promotion against the post of Assistant Engineer. He then argued that as far as the case of upgradation of the post of Junior Engineer to the post of Assistant Engineer is concerned, the same was objected to by the Finance Department vide letter dated 7.9.1999, however, the objection was over looked by the respondent-corporation. Mr. Atul Jhingan, Advocate appearing on behalf of the respondents has supported the rejection of the representation made by the petitioner. He then argued that the letter dated 7.9.1999 could not be given effect to since the proceedings of the meeting held on 29.3.1999 were approved on 30.8.1999 i.e. prior to the receipt of the objection by the Finance Department. 3 I have heard the learned counsel for the parties and have gone through the record carefully. It is not in dispute that the petitioner is eligible and qualified to be considered for the post of Assistant Engineer from the feeder category of Junior engineer. In the case of one Sh. P.C. Bhimta, the post of Assistant Engineer was upgraded to the post of Executive Engineer and it was made personal to him during the year 1998. It has come in Annexure RX that the re-designation and the scale was personal to Sh. P.C. Bhimta and the same was to continue till his retirement and after that the post of Executive Engineer (Civil) was to revert back to the cadre of Assistant Engineer in the lower scale of Rs. 7220-11660. The text of office order dated 31.3.1998 reads thus: “In pursuance of approval accorded by the Board of Directors in its meeting held on 27th March, 1998 vide item No. 10, Shri P.C. Bhimta, Asstt. Engineer (Civil), in the revised scale of Rs. 10025-15100/- which is personal to him is hereby redesignated as Executive Engineer (Civil) in the same scale of Rs. 10025-15100/- which he is already drawing with effect from 1st January, 1996. This redesignation and scale will be personal to Shri P.C. Bhimta and will continue till his retirement and after that the post of Executive Engineer (Civil) will revert back to the cadre of Assistant Engineer (Civil) in the lower scale of Rs. 7220-11660/-.” Sh. P.C. Bhimta has superannuated on 30.4.2001. Accordingly, clear vacancy has become available and the petitioner ought to have been considered for promotion to the post of Assistant Engineer. The respondent-corporation has also upgraded the post of Junior Engineer also to the post of Assistant Engineer by making it personal to the incumbent i.e. Sh. Jawahar Singh Nekta in the month of May, 1999. This 4 was done on the basis of the meeting of the Board of Directors held on 29.3.1999. This arrangement was objected to by the Finance Department vide letter dated 7.9.1999. A bare perusal of letter dated 7.9.1999 reveals that the State Government had issued instructions that all cases regarding upgradation are required to be sent to the Service Committee/F.D. for approval before placing them in the meeting of the Board of Directors. In the present case this course was not adopted by the respondent- corporation and as per the contents of this letter dated 7.9.1999, the upgradation was declared irregular. It is admitted fact that despite the letter dated 7.9.1999, no remedial measures were taken by the Board of Directors of the respondent-corporation. The flimsy explanation that since the proceedings of the meeting held on 29.3.1999 were confirmed in the subsequent meeting held on 30.8.1999 cannot be accepted. The Board of Directors of the respondent-corporation was bound to take action on letter dated 7.9.1999. The arrangement of the upgradation of the post of Junior Engineer has been declared irregular. It was necessary for the Board of Directors to obtain approval from the Service Committee. The respondent-corporation is a Government owned corporation. It is supposed to work in accordance with law. The Court disproves the manner in which the post was upgraded and the respondent-corporation has insisted for continuing with the arrangement without seeking the approval of the Service Committee. Mr. Atul Jhingal, Advocate has also argued that in subsequent meeting, which were attended by the functionaries of the Director Public Finances and Public Enterprises, no objection was ever taken by them. This plea is also liable to be rejected. Once the letter dated 7.9.1999 stood issued it was necessary for the Board of Directors to act in view of the observations contained in this letter. The effect of non-compliance of 5 letter dated 7.9.1999 is that Sh. Jawahar Singh Nekta was permitted to work unauthorisedly. Sh. Jawahar Singh Nekta could not be permitted to continue on the vacancy which has arisen after the superannuation of Sh. P.C. Bhimta. It is also intriguing to note that the corporation instead of making regular promotions has been resorting to unhealthy practice of upgrading the post. In the case of Sh. P.C. Bhimta, the post of Assistant Engineer was upgraded to the post of Executive Engineer and in the case of Sh. Jawahar Singh Nekta, the post of Junior Engineer was also upgraded to the post of Assistant Engineer. The corporation has framed its own Recruitment and Promotion Rules i.e. A-1. The regular promotions were required to be made by the respondent-corporation to the post of Assistant Engineer from the feeder category of Junior Engineer instead of resorting to the practice of upgrading the post and ignoring the claim of the petitioner and similarly situate persons for promotions. It is not a case where the petitioner was not eligible. He was eligible and qualified since he had seven years of service as Junior Engineer. The post had become available after superannuation of Sh. P.C. Bhimta on 30.4.2001 and against this post the petitioner was required to be considered for promotion on regular basis. The action of the respondent- corporation of permitting Sh. Jawahar Singh Nekta to continue against the vacancy which became available after the superannuation of Sh. P.C. Bhimta is declared illegal. Accordingly, in view of the observations made hereinabove, the petition is allowed. The respondents are directed to consider the petitioner for promotion to the post of Assistant Engineer from the date from which the vacancy has become available after the superannuation of Sh. P.C. Bhimta on 30.4.2001. The Departmental Promotion Committee shall be convened by the respondent-corporation within a period of four 6 weeks from today and, if the petitioner is found suitable for promotion, he shall be held entitled to all the consequential benefits. There shall, however, be no order as to costs. 15.10. 2009 (Rajiv Sharma ), J. *awasthi*