BALDEV SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) CWP No. 4587 of 2011 Facts are not in dispute. Vide order dated 30.5.2011 (Annexure P -1) Petitioner was promoted as "officiating Assistant Sub Inspector" which order was withdrawn the very next day i.e. 31.5.2011 in terms of impugned order (Annexure P -2).

(2.) ACCORDING to Mr. Anuj Nag, learned Counsel, the impugned order is in violation of instructions contained in Rule 16.12 of the Handbook on Personnel Matters, Volume -I (Second Edition) which reads as under: 16.12 Erroneous promotions The orders or notification of promotion or appointment of a Government servant should be cancelled as soon as it is brought to the notice of the appointing authority that such a promotion or appointment has resulted from a factual error and the Government servant concerned should, immediately on such cancellation, be brought to the position which he would have held but for the incorrect order of promotion or appointment. In the case, however, of a Government servant who has been erroneously promoted and appointed to a post in substantive capacity, the procedure prescribed in the Ministry of Home Affairs, O.M. No. 12/2/67 -Estt.(D), dated the 21st March, 1968 (as given below Govt. of India 'sOrder No. 1 below F.R. 31 - A -Swamy 'sCompilation of F.Rs. S.Rs. Tenth Edition) for deconfirming the Government servant in that post should be followed and only thereafter the Government servant concerned should be brought down to the position which he would have held but for the erroneous promotion/appointment by the issue of orders as mentioned above. Service rendered by the Government servant concerned in the post to which he was wrongly promoted/appointed as a result of the error should not be reckoned for the purpose of increments or for any other purpose in that grade/post to which he would not normally be entitled but for the erroneous promotion/appointment. Any consequential promotions or appointments of other Government servants made on the basis of the incorrect promotion or appointment of a particular Government servant will also be regarded as erroneous and such cases also will be regulated on the lines indicated in the preceding paragraph. Except where the appointing authority is the Governor, the question whether promotion/appointment of a particular Government servant to a post was erroneous or not should be decided by an authority next higher than the appointing authority in accordance with the established principles governing promotion/appointments. Where the appointing authority is the Governor, the decision should rest with the Governor and should be final. The Department of Personnel should be consulted in respect of promotions in the service administratively controlled by that Department. In other cases also, Department of Personnel may be consulted if there is doubt on any point. The cases of erroneous promotion/appointment in a substantive or officiating capacity should be viewed with serious concern and suitable disciplinary action should be taken against the officers and staff responsible for such erroneous promotion. (Ministry of Finance Memo. No. F.1 -(2) -Estt.III/59, dated 14 -3 -1963, reproduced as Govt. of India 'sOrder No. 1 below FR 31 -A of Swamy 's compilation of FRs and SRs Part I, 10th Edition 1991)

(3.) FURTHER Respondents have clarified in their affidavit that the D.P.C. did not highlight any exceptional work carried out by the Petitioner nor were other parameters reckoning exceptional merit disclosed by them. Importantly Petitioner was otherwise not eligible and entitled to be promoted. As such, the moment mistake was discovered, order of promotion was withdrawn. Significantly it is also brought to the notice of the Court that the DPC had also recommended promotion of two Head Constables who in fact were sick and medically unfit. Consequently even prima facie recommendations of the D.P.C. could not have been accepted by the appointing authority and as such realizing the mistake order of promotion was immediately withdrawn. Further Respondents have also sought explanation from the members of the D.P.C.