RAMESH KUMAR & ORS. ETC. versus STATE OF HIMACHAL PRADESH & ORS. ETC.
[2021] 7 S.C.R. 337, Supreme Court of India, 2021
Outcome: Dismissed (Dismissed)
Segment: Ratio
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RAMESH KUMAR & ORS. ETC.
v.
STATE OF HIMACHAL PRADESH & ORS. ETC.
(Civil Appeal Nos. 6649-6650 of 2021)
NOVEMBER 13, 2021
[M. R. SHAH AND SANJIV KHANNA, JJ.]
Service law: Promotion – Post of Accounts Officer(AO) –
Promotion to the post of AO sought by direct recruits to the post of
Assistant Accounts Officer (AAO) – Requirement of passing SAS
Part II exam for promotion – Held: What is not required for the
lower post, cannot be made applicable to the promotional post –
When there was no requirement of passing SAS Part II examination
for the lower post, i.e., post of AAO so far as direct recruits is
concerned, there cannot be any requirement of passing of the SAS
Part II exam for the promotional post of AO – After the appointment
as AAO either as a promotee or as a direct recruit, all shall be at
par – Thus, the requirement of passing of SAS Part II exam as per
the amended notification dated 02.01.2010 for the promotion to
the post of AO is arbitrary and illogical and rightly read down by
the High Court – High Court justified in holding that such a
requirement shall be for the promotion from the post of
Superintendent (D/A) to the post of AAO only and thus, not to be
applicable for promotion to the post of AO – Also, the High Court
rightly set aside the promotions of the AAOs junior to the direct
recruitees-AAO and issued directions to the State Electricity Board
to consider them for promotion to the post of AO from the dates the
persons junior to them in
the cadre of AAO were promoted to the
post of AO – Furthermore, on facts, there was no delay in filing the
writ petitions and also the prayer of the appellant, promotees to the
post of AOs to not to revert them cannot be accepted.
Dismissing the appeals, the Court
HELD: 1.1 Even as per the Regulation dated 01.11.2006,
there was no requirement of passing SAS Part II examination for
the direct recruit AAOs. The requirement of passing SAS Part II
examination was for the promotion from the post of
Superintendent (D/A) to the post of AAO and for the promotion
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in the promotion quota. However, when the amended notification
dated 02.01.2010 came to be issued, it provided passing of SAS
Part II examination for the post of AO and the eligibility criteria
was minimum two years service as AAO and must have passed
SAS Part II examination. As such for the post of AAO and as per
the Regulation dated 01.11.2006 as such there was no
requirement of passing SAS Part II examination so far as direct
recruits to the post of AAO are concerned. Requirement of
passing SAS Part II examination was only for promotion to the
post of AAO from the post of Superintendent (D/A). For direct
recruits as AAO, the only requirement was postgraduate degree
in commerce. Therefore, it is not understandable requirement of
passing of the SAS Part II examination for promotion to the post
of AO. When there was no requirement of passing SAS Part II
examination for the lower post, i.e., post of AAO so far as direct
recruits is concerned, there cannot be any requirement of passing
of the SAS Part II examination for the promotional post of AO.
As such after the appointment as AAO either as a promotee or
as a direct recruit, all shall be at par. Therefore, the requirement
of passing of SAS Part II examination as per the amended
notification dated 02.01.2010 for the promotion to the post of AO
can be said to be arbitrary and illogical and the same is rightly
read down by the High Court. What is not even required for
the
lower post, i.e., for the post of AAO so far as the direct recruits
is concerned, the same cannot be made applicable to the
promotional post of AO. The High Court is absolutely justified in
holding that such a requirement shall be for the promotion from
the post of Superintendent (D/A) to the post of AAO only and
consequently shall not be applicable for promotion to the post of
AO. [Para 8.1][344-G-H; 345-A-F]
1.2 As regards the submission on behalf of the appellants
that they were promoted to the post of AO in the year 2010 onwards
and their promotions have been set aside after long time and
therefore in a petition filed in the year 2017, i.e., after
approximately a period of 6-7 years, the High Court ought not to
have set aside the promotions of the appellants to the post of AO
is concerned, it is required to be noted that till 2015, a litigation
was pending before this Court at the instance of the direct recruits
and their status as regular employees as AAOs came to be
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determined by this Court pursuant to the decision of this Court
dated 13.01.2015 in Civil Appeal No. 390 of 2015. Only thereafter
they were issued the regular appointment orders and their
seniority was fixed and only thereafter the cause of action has
arisen to claim further promotion to the post of AO. Even while
allowing the appeals filed by the direct recruits, this Court
specifically directed that they shall be treated as regularly
appointed AAOs w.e.f. the date of their initial appointment and
this Court specifically directed to provide the direct recruits with
consequential benefits including seniority etc. Thus, as such there
was no delay at all. [Para 8.2] [345-F-H; 346-A-B]
1.3 The prayer on behalf of the appellants that they may
not be reverted is concerned, cannot be accepted. If such a prayer
is granted in that case, the effect of the impugned judgment and
order passed by the High Court which has been upheld would be
nullified. As a necessary consequence to the impugned judgment
and order passed by the High Court, now the entire list for the
promotion to the post of AO will have to be re-shuffled and the
cases of the direct recruits are required to be considered for
promotion to the post of AO from the date on which their junior
came to be promoted on the post of AO. Therefore, necessary
consequences will have to be followed. If the prayer of the
appellants not to revert them and to continue them on the
promotional post is accepted, in that
case, there may arise many
complications including the effect on the further promotional posts
from the post of AO to Senior AO and thereafter to the post of
Dy. CAO/Dy. CA/Dy. FA, therefore, the said prayer is rejected.
[Para 8.3][346-C-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6649-
6650 of 2021.
From the Judgment and Order dated 04.03.2020 of the High Court
of Himachal Pradesh, Shimla in CWPOAs Nos.11 and 12 of 2019.
With
Civil Appeal Nos. 6652 and 6651 of 2021.
P. S. Patwalia, Sr. Adv., Abhinav Mukerji, Ms. Pratishtha Vij,
Mrs. Bihu Sharma, Akshay C. Shrivastava, Ms. Harshika Verma, Tushar
Bakshi, E. C. Agrawala, Abhinav Agrawal, Rajiv K. Virmani, Rajesh
RAMESH KUMAR & ORS. ETC. v. STATE OF HIMACHAL
PRADESH & ORS. ETC.
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Kumar, Ms. Swati Bhardwaj, D. Bharat Kumar, Tadimalla Bhaakar
Gowtham, Aman Shukla, Gopal Jha, Rahul G. Tanwani, Siddhartha Sinha,
Hatindra Manda, Dasari Muralee Mohan, Rajesh Kumar Gautam, Anant
Gautam, Nipun Sharma, Ravi Solanki, Manish Kumar, Vijay Kumar, Rahul
Dev, Advs. for the appearing parties.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Himachal Pradesh dated
04.03.2020 passed in CWP No. 11 of 2019 and CWP No.12 of 2019 by
which the High Court has allowed the said writ petitions preferred by
the private respondents herein – original writ petitioners by which the
High Court has set aside the promotions of the Assistant Accounts
Officers junior to the original writ petitioners and has directed the
Himachal State Electricity Board Limited (hereinafter referred to as
“the Board”) to consider the original writ petitioners for promotion to the
post of Accounts Officers from the dates from which the persons junior
to them in the cadre of Assistant Accounts Officers (hereinafter referred
to as “AAO”) were promoted to the post of Accounts Officers
(hereinafter referred to as “AO”), the original private respondents as
well as the Board have preferred the present appeals.
2. That the dispute is related to the promotion to the post of A.O.
Once again the dispute is between the direct recruits and the
promotees.
That earlier the post of AAO was a promotional post to be filled up
100% by promotion from Superintendent (D/A), who have cleared SAS
Part-II examination. Similarly, the post of AO was a promotional post to
be filled up 100% by promotion from the post of AAO. In the year 2006
the Regulations came to be amended and a provision was made for
direct recruitment for the post of AAOs. The respondents herein – original
writ petitioners were the direct recruits to the post of AAO. Initially,
they were appointed on contract basis though their appointments were
after following due procedure of selection. The appellants herein – original
respondents are the promotees to the post of AAO.
2.1 As per the amended Regulations dated 01.11.2006, for the
post of AAOs 30% posts were reserved for direct recruits and 70% for
promotion. The educational qualification required for the direct recruits
for the post of AAO reads as under:-
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7.
Minimum Educational and other 
qualification required for direct 
recruits 
Essential
Post Graduate degree in Commerce, 
MBA(Fin.)/MFC with minimum 55% 
marks or having degree of Chartered 
Accountants/ICWA from recognised 
University/Institute. 
Desirable
Knowledge of customs, manners & 
dialects of Himachal Pradesh & 
suitability for appointment in the 
peculiar conditions prevailing in the 
Pradesh.  
2.2 Thus, there was no requirement of passing SAS Part II exam
so far as the direct recruits for the post of AAO is concerned. The
dispute arose as to whether the direct recruits though they were appointed
after following all procedure of selection including recommendation of
the Public Service Commission and were continuing in service since
long, they can be said to be regularly appointed or not. The dispute ended
in the year 2015 in view of the decision of this Court in Civil Appeal No.
390 of 2015 in which this Court directed the Board to provide letter of
regular appointment to those direct recruits – original writ petitioners
herein w.e.f. the date of their initial appointment treating the initial two
years as on probation with further direction to provide them with
consequential benefits including regular scale of pay, increment, arrears
of pay, seniority etc. to which they were entitled under the law.
2.3 That vide amendment notification dated 02.01.2010, the R&P
Regulations to the post of Superintendent (D/A), Assistant Accounts
Officer,
Accounts Officer etc. came to be issued and so far as the post
of Accounts Officer is concerned, it provided as under:-
3.
Accounts 
Officer 
(8550-
14500) with 
initial 
start 
of 9400/- 
HPSEB/Sectt/1-06-10/75-
59814-904 dated 29.10.1975 
and further amendment vide 
notification 
No. 
HPSEB 
(Sectt)/106-10/R&E/96-
11671-871 dated 10.10.1996 
Colu
mn 
No. 6 
Should 
minimum 
service of 
three years 
as 
Asstt. 
Accounts 
Officer. 
(i) 80% from 
amongst the 
AAO who have 
rendered 
minimum two 
years service as 
AAO & must 
have passed 
SAS Part-II  
(ii)20% by method 
of direct 
recruitment 
having degree 
of ICWA/ CA 
from recognizer 
Institute or on 
secondment 
basis.  
RAMESH KUMAR & ORS. ETC. v. STATE OF HIMACHAL
PRADESH & ORS. ETC.[M. R. SHAH, J.]
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2.4 On the basis of the aforesaid amended Regulation issued vide
notification dated 02.01.2010, the appellants herein came to be promoted
to the post of AO and thereafter to the post of Sr. AO. In view of the
amended notification dated 02.01.2010, under which one of the
requirement was that for the promotion to the post of AO (for 80%
posts of AO), the AAOs must have passed SAS Part II exam, the direct
recruits AAOs were not promoted and/or their cases were considered
on the ground that they have not passed the SAS Part II exam. After
decision of this Court dated 13.01.2015 in Civil Appeal No. 390 of 2015
by which the status of the private respondents herein the original writ
petitioners – direct recruits came to be cleared, the private respondents
herein – direct recruits AAO filed the writ petition before the High Court
challenging the amendment notification dated 02.01.2010 under which it
was provided that for promotion to the post of AO, 80% promotional
quota was to be from AAOs, who have rendered minimum two years
service as AAO and must have passed SAS Part II exam. A consequential
relief was also sought. By impugned judgment and order, the High Court
has allowed the said writ petitions and read down the words “must have
passed SAS Part II” prescribed against 80% promotion quota for
promotion to the post of Accounts Officer and directed that the same be
made applicable to the category of Superintendents (D/A)
promoted as
AAOs against 20% promotion quota prescribed for promotion from the
post of Superintendent (D/A), who could not pass SAS Part II
examination. Consequently, the High Court quashed the promotions of
the AAOs - junior to the original writ petitioners – direct recruits and
directed the Board to consider the direct recruit AAOs for promotion to
the post of AOs from due dates from which persons junior to them in the
cadre of AAOs were promoted.
2.5 The impugned judgment and order passed by the High Court
is the subject matter of the present appeals.
3. We have heard Shri P.S. Patwalia, learned Senior Advocate
appearing on behalf of the appellants herein – promoted AAOs, who
subsequently came to be promoted as AOs and learned counsel appearing
on behalf of the Board and learned counsel appearing on behalf of the
original writ petitioners – direct recruit AAOs.
4. Shri Patwalia, learned Senior Advocate appearing on behalf of
the promotee AAOs, who subsequently came to be promoted to the post
of AOs pursuant to the amendment notification dated 02.01.2010 has
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vehemently submitted that the High Court has not properly appreciated
the object and purpose of providing passing of SAS Part II examination
for promotion to the post of AO.
4.1 It is submitted that being a higher post, after due deliberation,
a decision was taken by the Board to provide for passing of SAS Part II
examination for the promotion to the post of AO.
4.2 It is submitted that initially the appointment to the post of AAOs/
AOs were by way of promotion only and for the post of AAO, the
requirement of passing of SAS Part II examination was mandatory. It is
submitted that thereafter when the Regulations came to be amended by
providing the quota for direct recruits, the Board thought it fit to also
provide for passing of the SAS Part II examination for promotion to the
post of AO from the post of AAO. It is submitted that number of chances
were given to the direct recruits to pass the SAS Part II examination
and many of them cleared also. It is submitted therefore the requirement
of passing SAS Part II examination for promotion to the post of AO
ought not to have been set aside by the High Court.
4.3 It is further submitted by Shri Patwalia, learned Senior
Advocate appearing on behalf of the appellants-promotees that the
appellants got the promotion in the year 2010/2012 pursuant to the
amendment notification dated 02.01.2010 and even thereafter they got
their further promotion and the writ petition was filed in the year 2017
and therefore the High
Court ought not to have set aside their promotions
to the post of AO and Senior AO after such a long time, more particularly,
when they have worked on the promotional post for number of years. It
is submitted that as the appellants herein are working on the promotional
post of AO since long, they may not be directed to be reverted and their
promotions to the post of AO and their further promotion be protected.
5. Learned counsel appearing on behalf of the Board has supported
the submissions as advanced by Shri Patwalia, learned Senior Advocate
appearing on behalf of the appellants – promotees.
6. Present appeals are vehemently opposed by learned counsel
appearing on behalf of the direct recruits. It is submitted that as rightly
held by the High Court, the amendment notification dated 02.01.2010
under which it is provided that for promotion to the post of AO, the
passing of SAS Part II examination is must, is arbitrary. It is submitted
that the qualification required for the post of AAO, i.e., passing of SAS
Part II examination cannot be made applicable for promotion to the post
RAMESH KUMAR & ORS. ETC. v. STATE OF HIMACHAL
PRADESH & ORS. ETC.[M. R. SHAH, J.]
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of AO more particularly when there is no requirement of passing of
SAS Part II examination for direct recruit AAO. It is submitted that
after appointment as AAO, either as promotee or direct recruits, all
AAOs shall be at par. It is submitted that even there was no requirement
of passing SAS Part II examination for direct recruits as AAOs. It is
submitted that therefore even when for appointment as direct recruits
as AAOs, there was no requirement of passing SAS Part II examination,
no such qualification of passing SAS Part II examination for promotion
to the post of AO could have been imposed. It is submitted that therefore
the High court has rightly read down the amendment notification dated
02.01.2010 by holding that the passing of SAS Part II examination shall
be restricted for the promotion from the post of Superintendent (D/A) to
AAO and shall not be applicable for promotion to the post of AO.
6.1 It is further submitted that as such if the amendment notification
dated 02.01.2010 as stood is made applicable, in that case, no direct
recruits would get the promotion to the post of AO, as per the Regulation
unless they work for a particular period, they shall not be entitled to
appear in the examination of even SAS Part II.
6.2 So far as the submission on behalf of the appellants that there
was a delay and therefore the High Court ought not to have set aside the
promotions is concerned, it is submitted that as such
the direct recruits
were litigating before this Court and their appointments as regular
appointments came to be made final pursuant to the judgment and order
dated 13.01.2015 passed by this Court in Civil Appeal No. 390 of 2015
and thereafter the seniority list was prepared. It is submitted that
immediately thereafter they filed the petitions. It is submitted that
therefore there was no delay at all.
7. We have heard the learned counsel appearing for the respective
parties at length.
8. The issue which poses for consideration before this Court in
this case is the dispute with respect to the promotion to the post of AO.
Once again the dispute is between the direct recruits and the promotees.
8.1 It is required to be noted that even as per the Regulation dated
01.11.2006, there was no requirement of passing SAS Part II examination
for the direct recruit AAOs. The requirement of passing SAS Part II
examination was for the promotion from the post of Superintendent (D/
A) to the post of AAO and for the promotion in the promotion quota.
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However, when the amended notification dated 02.01.2010 came to be
issued, it provided passing of SAS Part II examination for the post of
AO and the eligibility criteria was minimum two years service as AAO
and must have passed SAS Part II examination.  As observed hereinabove,
as such for the post of AAO and as per the Regulation dated 01.11.2006
as such there was no requirement of passing SAS Part II examination
so far as direct recruits to the post of AAO are concerned. Requirement
of passing SAS Part II examination was only for promotion to the post
of AAO from the post of Superintendent (D/A). For direct recruits as
AAO, the only requirement was postgraduate degree in commerce
(reproduced hereinabove). Therefore, it is not understandable requirement
of passing of the SAS Part II examination for promotion to the post of
AO. When there was no requirement of passing SAS Part II examination
for the lower post, i.e., post of AAO so far as direct recruits is concerned,
there cannot be any requirement of passing of the SAS Part II examination
for the promotional post of AO. As such after the appointment as AAO
either as a promotee or as a direct recruit, all shall be at par. Therefore,
the requirement of passing of SAS Part II examination as per the amended
notification dated 02.01.2010 for the promotion to the post of AO can be
said to be arbitrary and illogical and the same is rightly read down by the
High Court. What is not even required for the lower
post, i.e., for the
post of AAO so far as the direct recruits is concerned, the same cannot
be made applicable to the promotional post of AO. The High Court is
absolutely justified in holding that such a requirement shall be for the
promotion from the post of Superintendent (D/A) to the post of AAO
only and consequently shall not be applicable for promotion to the post
of AO.
8.2 Now, so far as the submission on behalf of the appellants that
they were promoted to the post of AO in the year 2010 onwards and
their promotions have been set aside after long time and therefore in a
petition filed in the year 2017, i.e., after approximately a period of 6-7
years, the High Court ought not to have set aside the promotions of the
appellants to the post of AO is concerned, it is required to be noted that
till 2015, a litigation was pending before this Court at the instance of the
direct recruits and their status as regular employees as AAOs came to
be determined by this Court pursuant to the decision of this Court dated
13.01.2015 in Civil Appeal No. 390 of 2015. Only thereafter they were
issued the regular appointment orders and their seniority was fixed and
RAMESH KUMAR & ORS. ETC. v. STATE OF HIMACHAL
PRADESH & ORS. ETC.[M. R. SHAH, J.]
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only thereafter the cause of action has arisen to claim further promotion
to the post of AO.
At this stage, it is required to be noted that even while allowing
the appeals filed by the direct recruits, this Court specifically directed
that they shall be treated as regularly appointed AAOs w.e.f. the date of
their initial appointment and this Court specifically directed to provide
the direct recruits with consequential benefits including …………
seniority etc. Thus, as such there was no delay at all as sought to be
contended on behalf of the appellants.
8.3 Now, so far as the prayer on behalf of the appellants that they
may not be reverted is concerned, the aforesaid cannot be accepted. If
such a prayer is granted in that case, the effect of the impugned judgment
and order passed by the High Court with which we agree shall be nullified.
As a necessary consequence to the impugned judgment and order passed
by the High Court, now the entire list for the promotion to the post of AO
will have to be re-shuffled and the cases of the direct recruits are required
to be considered for promotion to the post of AO from the date on which
their junior came to be promoted on the post of AO. Therefore, necessary
consequences will have to be followed. If the prayer of the appellants
not to revert them and to continue them on the promotional post is
accepted, in that case, there may arise many complications including the
effect on the
further promotional posts from the post of AO to Senior
AO and thereafter to the post of Dy. CAO/Dy. CA/Dy. FA, therefore,
the aforesaid prayer is rejected.
9. In view of the above and for the reasons stated above, all these
appeals fails and are deserve to be dismissed and accordingly dismissed.
In the facts and circumstances of the case, there shall be no order as to
costs. Pending applications, if any also stand disposed of.
Nidhi Jain
Appeals dismissed.