IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 5904 of 2008. Decided on: 24.11.2010. __________________________________________________ Rajinder Chand Katoch and others. … Petitioners. Versus State of H.P. and another. ... Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the petitioners : Mr. Onkar Jairath, Advocate. For respondents No. 1 : Mr. Anil Jaswal, Dy.A.G. For respondent No.2 : Mr. Dushyant Dadhwal, Advocate. ___________________________________________________________ Justice V.K. Sharma, Judge. (Oral). The petition has been filed on the following prayers: “7 (i). That the implementation and operation of impugned amendment contained in Annexure A-4 may kindly be ordered to be stayed till the final disposal of the Original Application. (ii). The amendments in R&P Rules contained in Annexure A-4 may very kindly be quashed and strike-down. (iii). It is further prayed that in the R&P Rules for promotion to the post of Sr. Accountant Grade-I in the pre-revised scale of Rs. 2000-3500 and AAM/APO in the pre-revised scale Rs. 2200-4000 may be kept on the basis of pooled seniority as per standing instructions of the Govt. not on percentage basis as has done by the respondents-Management.” 2. Respondent No. 2 has taken the following stand vide para 3 of the reply:- 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 “In reply to para 3 it is humbly submitted that there is no vested right of promotion in any employee. Mere chance of promotion cannot confer an unrestricted right on the employee to claim promotion. It is submitted that in the amended Recruitment & Promotion Rules, 38 Sr. Assistants (Accounts) have 100% promotional avenues for 11 posts of Senior Accountants Gr.I. Further, the promotional channel for Senior Accountants Gr.I has also been made 100% to the three posts of Accounts Officers and further the post of Sr. Accounts Officer is to be filled up from Accounts Officers. Thereafter the Sr. Accounts Officer has two promotional channels. In one case the Sr. Accounts Officer has been made feeder category for the post of Manager Finance and in second case the Sr. Accounts Officer has been made the feeder category for the post of Divisional Manager/ Procurement Manager/ Distribution Manager. In this behalf the relevant Recruitment & Promotion Rules of each category may kindly be perused in Annexure A-4 of the original application. The Divisional Manager/ Procurement Manager/ Distribution Manager has been made the feeder category for the promotion of General Manager (Admn.)/ General Manager, which are the highest posts in the Corporation i.e. next to the Managing Director (who is appointed from amongst the I.A.S. Officers by the State Govt.). For the categories of Sr. Assistants (Accounts) and Sr. Accountant Gr.I, in the second channel of promotion three posts of Assistant Area Manager/Asstt. Procurement Officer have been earmarked in the amended R&P Rules. From the above it is clear that for the total posts of 49 Accounts cadre (i.e. Sr. Accountant Gr. I and Sr. Assistant, Accounts) there are 3 posts of 3 Accounts Officer and three posts of Assistant Area Manager/Assistant Procurement Officer for promotion (Total: 6) in the amended R & P Rules. In addition to it after promotion to the post of Sr. Accounts Officer, there are two channels of promotion i.e. for the post of Manager Finance and for Divisional Manager/ Procurement Manager/ Distribution Manager. On the other hand promotional channel for the 22 Sr. Assistant, 12 Sales Supervisors, 3 Technical Assistants, 1 Legal Assistant has only the post of Assistant Area Manager/Assistant Procurement Officer. These categories have no other promotional channel and six Sr. Scale Stenographer and two P.As. have to channels for promotion, whereas the total strength works out to 46. Promotional chart is at Annexure R-1. The counter claim of these categories remained unresolved for quite number of years since 1990. Particularly the employees of these categories are members of the Corporation’s Union. These amended R & P Rules were pending since 1990 and the Corporation sought proposal from the Unions of which the applicants 3 & 9 were General Secretary and President respectively. They submitted the proposal for percentage of 40% promotional avenues for Accounts category and 60% for other categories for the posts of AAM/APO (Annexure R-II). The replying respondent had gone through the proposal carefully and keeping in view the promotional avenues available to various categories in their respective cadres, had proposed 66% promotion to other categories and 33% to Accounts category to the post of AAM/APO and hence quota- rota proposed in the rules was not violative of Constitution of India. 4 In the existing Recruitment & Promotion Rules (Annexure A-2), Sr. Assistant (Accounts) category was not feeder post for the promotion of AAM/APO post. Sr. Assistants (Accounts) were not appointed only by promotion but by different mode of appointment i.e. direct recruitment, absorption of deputation staff etc. Some of the applicants were appointed/promoted from amongst P.D.Cs. by test and some of the P.D.Cs. by offering their options. Hence officials once promoted to a cadre, their prospectus are to be governed according to the rules framed and amended from time to time. Hence amendments made in the Recruitment & Promotion Rules are in the interest of the employees at large and in accordance with the proposals submitted by the employees union.” However, respondent No.1 has not filed any reply. 3. A rejoinder refuting the stand on behalf of the respondents and reiterating the averments set up in the petition has been filed. The following averments set up in the relevant part of para 3 of the rejoinder on merits need specific mention:- “It is clear from the statement that Sh.B.S. Rana at Sr. No. 15 who belongs to the category of Senior Assistant since 3.7.1984 has been promoted to the post of AAM on 2.2.1999 whereas Senior Accountants/Accountants at Sr. No. 8 to 14 are still on the same post since 1.7.1984. Similarly, Sh. Attar Singh Tomar at Sr. No. 19, Sh. Arvind Kumar Dhawan at Sr. No. 27 who belong to Assistant Category have been promoted as AAM/APO on 2.2.1999 by superseding Applicant category at Sr. no. 8 to 14, 16 to 18 and 20 to 25. Sh. N.S. Chai at Sr. No. 28 has got adhoc promotion by superseding his seniors of Accounts Category. Sh. Ramesh Chand at Sr. No. 29 5 and Sh. Kashmir Singh at Sr. No. 30 of Assistant Category has also got promotion on 4.2.1999 and 9.3.2001 respectively by superseding Accounts Category. It is clear from the statement that persons who got the scale of Rs. 1800-3200 in 1985, 1986 or 1987 have got promoted earlier than Accountant who were in the same scale since 1984.” 4. Shorn of details the controversy raised by the petitioners relates to amendment of R&P Rules for the post of Assistant Area Manager/Assistant Procurement Officer circulated vide office order dated 9.10.1998, Annexure A-4. The existing provision as per Annexure A-1 was as under:- 9. Assistant Area Manager, Assistant Procurement Officer. Selection Graduate with at least five years experience in the filed of procurement, distribution, personnel matters and maintenance of accounts of commercial concern OR MBA with at least two years experience in a commercial concern. Not applicable. 50% by promotion and 50% by direct recruitment/ deputation. i) By promotion from amongst Assistants, Technical Assistants, Legal Assistants in the scale of Rs. 700-1200 or above and Senior Accountants with at least five years service as such in the Corporation. For this purpose, a pooled seniority will be drawn with reference to the dates from which the incumbents get seniority as such in the service of the Corporation, subject to inter- se category-wise seniority being maintained. ii) By deputation of suitable incumbents from State Govt. Departments/Corporations/Boards.” 5. The amended provision is as under:- 11. In case of recruitment by promotion, deputation, transfer, grades from which promotion/ deputation/ transfer is to be made. I. 66% by promotion from amongst Sr. Assistants/Technical Assistants/Legal Assistants/Sales Supervisor/Sr. Scale Stenographers with five years service and personal assistant with 5 years service as personal assistant & Sr. Scale Stenographer taken together as such on pooled seniority. II. 33% by promotion from amongst Sr. Accounts GR-1 with three yrs. Service as such in the Corpn. or 5 yrs of service as Sr. Assistant (spel in acs) and Sr. Accountant Gr-I taken together. iii) By deputation of suitable incumbents from State Govt. Dept./Corpns/Boards holding equivalent scale of pay. 6. In view of the above reply coupled with the facts and circumstances of the case and on and overall view of the matter, it shall be expedient and in the interest of justice that in case the petitioners submit a representation along with a copy of this 6 judgment to respondent No.2 within one month from today, the said respondent shall consider and decide the same finally within next three months by taking into consideration the law laid down by the Hon’ble Supreme Court in: (1) Council of Scientific and Industrial Research and another versus K.G.S. Bhatt and another, AIR 1989 Supreme Court 1972. Para 9 of the judgment being relevant is extracted below:- “9. That then is the scope of bye-law 71(b)(ii). But that does not mean that we should interfere with the relief granted to respondent 1. By pointing out the error that crept into the decision of the Tribunal, we need not take to its logical end which will defeat justice. Respondent I is not a lay-man. He is a highly qualified engineer. Although joined service with a diploma in Engineering, he later passed Bachelor of Engineering (B. E)' and also acquired M.Tech. degree and one, more diploma (D.P.M.). He was, however, left without opportunity for promotion for about twenty years. This is indeed a sad commentary on the appellant's management. It is often said and indeed, adroitly, an organisation public or private does not 'hire a hand' but engages or employs a whole man. 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 7 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-managerial 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. (See: Management of Personnel in Indian Enterprises by Prof. N. N. Chatterjee, Chap. 12, p. 128). The appellant appears to have overlooked this basic requirement of management so far as respondent I was concerned till N. R. and A. S. were introduced.” (2). A Satyanarayana and others versus S. Purushotham and others, (2008) 5 Supreme Court Cases 416, wherein it has been held vide para 30 of the judgment:- “30. 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 times to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India.” 8 (3). State of Himachal Pradesh versus Vijay Kumar Sharma, 2008 (6) SLR-180 laying the following rule of law in para 10 of the report:- “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]. 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.” 9 7. Reliance has also been placed on a common judgment dated 29.4.2009 rendered by a learned Single Judge of this court in CWP (T) No. 2697/2008, titled Dhani Ram versus Himachal Road Transport Corporation with CWP (T) No. 2698/2008, titled Om Parkash versus Himachal Road transport Corporation as up-held in LPA No. 75 of 2009, titled Himachal Road Transport Corporation versus Shri Om Parkash. 8. In order to enable respondent No.2 to appreciate the matter properly, it is directed that the petitioner shall also supply duly authenticated copies of the aforesaid judgments along with the representation. Needless to say that consequential benefits, if any, shall follow the decision on the representation. 9. The petition stands disposed of in the above terms. In view of the disposal of the main petition, pending application(s) if any, shall also stand disposed of as infructuous. Copy dasti. (V.K. Sharma) Judge. November 24, 2010. (cr)