IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 760 of 2008. Decided on: 21.06.2010. __________________________________________________________ Amar Dogra. … 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. Keshav Thakur, Advocate. For the Respondents : Mr. P.M. Negi, Deputy Advocate General. Rajiv Sharma, J. (Oral): The petitioner was appointed as Staff Nurse in the respondent-department. She was promoted to the post of Ward Sister. Post of Ward Sister is in the feeder category for promotion to the post of Matron. The candidate is required to complete Ward Administration Course. Petitioner completed the Ward Administration Course as per Annexure A-1, dated 3rd April, 2007. The case of the petitioner, in a nutshell, is that she was fully eligible and qualified to be considered for promotion to the post of Matron as per the Himachal Pradesh Department of Health & Family Welfare Matron (Class-II, Non-Gazetted) Recruitment and Promotion Rules, 2004 (hereinafter called as “the 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - Rules”). The case of the respondent-State precisely is that since the A.C.Rs./I.Cs. of the petitioner and similarly situate persons were not supplied, her case could not be considered by holding the Departmental Promotion Committee. 2. Mr. Keshav Thakur, learned counsel for the petitioner has strenuously agued that the A.C.Rs/I.Cs. of the petitioner were supplied by the Chief Medical Officer, Bilaspur as per Annexure A-3, dated 26.11.2007 and accordingly, the Departmental Promotion Committee was required to be convened for considering the case of the petitioner for promotion to the post of Matron. He then contended that the petitioner cannot be faulted in any manner for not holding the Departmental Promotion Committee by the respondent-department when the eligible candidates were available for being considered for promotion to the post of Matron. Mr. P.M. Negi, learned Deputy Advocate General has strenuously argued that the Departmental Promotion Committee could not be convened since the A.C.Rs/I.Cs. of the petitioner and similarly situate persons were not available. 3. I have heard the learned counsel for the parties and gone through the record carefully. 4. Petitioner has completed “Ward Administration Course” as per Annexure A-1, dated 3rd April, 2007. It is not in dispute that the petitioner was fully eligible and qualified to be considered for promotion to the post of Matron. She made a representation to the Hon’ble Minister of Health seeking promotion to the post of Matron. The copy of the representation was also sent by the Private Secretary to the Forest Minister to the Director of Health Services. He was directed to take necessary action. The Chief Medical Officer, Bilaspur (H.P.) informed - 3 - the Director of Health Services on 26.11.2007 that the A.C.Rs./I.Cs. of the petitioner were enclosed with the letter and the petitioner had completed three months’ Ward Administration Training Course at I.G.M.C., Shimla. Surprisingly, the Director, Health Services has again sought information from the Principal, I.G.M.C., Shimla and other Administrative Heads on 23rd January, 2008 for supply of A.C.Rs./I.Cs. and other relevant documents. Name of the petitioner figures at Sr. No.11 in Annexure-A. It is mentioned against the column that A.C.Rs/I.Cs. and VCC for 2006-07 of the petitioner were awaited. The petitioner has superannuated on 29.2.2008. The Departmental Promotion Committee was convened by the respondent-department after the retirement of the petitioner and 50 Ward Sisters were promoted to the post of Matron vide Notification dated 27th August, 2008. Petitioner’s case was not considered only for the reason that she had superannuated. Necessary documents of the petitioner were already supplied by the Chief Medical Officer, Bilaspur as per Annexure A-3 to the Director of Health Services. In view of this, the case of the petitioner was required to be considered for promotion instead of delaying the same. The petitioner cannot be faulted and deprived of the right to be considered for promotion to the post of Matron only due to administrative delay by the respondent-department of not holding the D.P.C. in time. 5. Their Lordship of Hon’ble Supreme Court in Union of India and another versus Hemraj Singh Chauhan and others, (2010) 4 SCC 290 have held that right of an eligible employee to be considered for promotion is virtually a part of his fundamental right under Article 16 and legitimate expectation for being considered for promotion cannot be defeated due to inaction on the part of the department in conducting - 4 - cadre review in time despite reminders from Central Government. Their Lordships have held as under (paras 35, 36, 42 and 43):- “The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a welfare State. 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. Concurring with the aforesaid interpretative exercise, we hold that the statutory duty which is cast on the State Government and the Central Government to undertake the cadre review exercise every five years is ordinarily mandatory subject to exceptions which may be justified in the facts of a given case. Surely lethargy, inaction, an absence of a sense of responsibility cannot fall within the category of just exceptions. In the facts of this case neither the appellants nor the State of Uttar Pradesh has justified its action of not undertaking the exercise within the statutory time- frame on any acceptable ground. Therefore, the delayed exercise cannot be justified within the meaning of “ordinarily” in the facts of this case. In the facts of the case, therefore, the Court holds that there was failure on the part of the authorities in carrying out the timely exercise of cadre review.” 6. Mr. P.M. Negi, learned Deputy Advocate General has also argued that the D.P.C. could be convened only after obtaining the - 5 - necessary documents in the year 2008 on the basis of which 50 Ward Sisters were promoted to the post of Matron. The right to be considered for promotion is a valuable constitutional right. Petitioner became eligible for being considered for promotion to the post of Matron after completing the Ward Administration Course and her case was required to be considered within a reasonable time. Necessary documents, as noticed above, were supplied by the Chief Medical Officer to the Director of Health Services in the month of November, 2007 and before her retirement, her case could be considered for promotion to the post of Matron. Mr. P.M. Negi has also argued that the petitioner has been granted benefits under “Assured Career Progression Scheme” in lieu of promotion at different stages vide letter dated 15.12.1998. The benefits granted under Assured Career Progression Scheme are no substitute for promotion. Promotion means higher position with higher responsibility and higher salary. 7 Accordingly, in view of the observations made hereinabove, the petition is allowed. Respondents are directed to consider the case of the petitioner for promotion to the post of Matron from the date her juniors were promoted with all consequential benefits, within a period of ten weeks from today. There will be no order as to costs. (Rajiv Sharma), Judge. June 21, 2010. (sck).