IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP-T No. 3747/2008 Decided on:9.7.2010 _____________________________________________ Madan Lal Kaushal. …Petitioner. Versus State of Himachal Pradesh. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. K.D. Shreedhar, Advocate. For the Respondent : Mr. P.M. Negi, Dy. Advocate General. _____________________________________________________ Rajiv Sharma, Judge (oral). Petitioner was appointed as Junior Engineer in the Public Works Department on 12.9.1979. The post of Junior Engineer is in feeder category for promotion to the post of Assistant Engineer. Prior to the Himachal Pradesh Public Works Department Assistant Engineer (Civil) (Class-I Gazetted) Recruitment and Promotion Rules, 1995, notified on 19.4.1995, the Recruitment and Promotion Rules for the post of Assistant Engineer (Civil), H.P.P.W.D. Rules, 1973 notified on 12.11.1976 were in vogue. Petitioner has passed his AMIE examination and was required to be considered for promotion to the post of Assistant Engineer 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 against 10% posts which as per rule 11 (iii) were reserved for Graduate Junior Engineers. Though large number of vacancies were available, however, respondents did not convene the Departmental Promotion Committee for filling up the posts of Assistant Engineers by way of promotion. The Departmental Promotion Committee met in the year 1995 and the name of the petitioner was recommended by the Departmental Promotion Committee and he was promoted vide Annexure A-1 in the month of March, 1995, however, with immediate effect. Respondents have admitted in their reply that the petitioner was considered for promotion by the Departmental Promotion Committee against the vacancy which fell in the share of graduate engineers during the year 1987. Since the petitioner was eligible and qualified to be considered for the post in question in the year 1987, he was required to be considered for promotion with effect from 1987 and not with effect from 1995. It was necessary for the respondents to convene Departmental Promotion Committee after taking into consideration year-wise vacancies. 2. There is no merit in the contention of Mr. P.M. Negi, learned Deputy Advocate General that the Departmental Promotion Committee could not be convened due to pendency of cases whereby seniority lists were challenged. There is also no merit in the contention of Mr. P.M. Negi that VCC were to be obtained, which caused delay. Respondents cannot take advantage of their own wrongs. The right to be considered for promotion has now 3 almost been considered virtually a part of fundamental right by the Hon’ble Supreme Court. 3. Their Lordships of the Hon’ble Supreme Court in Union of India and another versus Hemraj Singh Chauhan and others, AIR 2010 SC 1682 have held that right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. Their Lordships have further held that the guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution. Their Lordships have held as under: “38. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.” 3. In view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court, the petitioner has right to be considered for promotion in accordance with law. Since the vacancies were available in the year 1987, the case of the petitioner was required to be considered from this year and not from 1995. In view of this, the instructions relied upon by the respondents, i.e. Annexure R-1 are also not applicable in the instant case. Their Lordships of the Hon’ble Supreme Court have also held in the judgment cited hereinabove that the employee 4 cannot be permitted to suffer if the delay is attributable to the employer. 4. Accordingly, the petition is allowed. Respondents are directed to consider the case of the petitioner for promotion to the post of Assistant Engineer with effect from 1987 with all the consequential benefits. Needful be done within a period of ten weeks from the date of production of certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma), Judge 9.7.2010 *awasthi*