DEVINDER KUMAR SARASWATI Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) PETITIONER was promoted as Section Officer on 03.12.2002. The post of Section Officer is in feeder category for promotion to the post of Under Secretary as per the Recruitment and Promotion Rules framed on 08.03.2000 called "The Himachal Pradesh Secretariat Services (Under Secretary) Class-I (Gazetted) Recruitment and Promotion Rules, 2000 (hereinafter to be referred as "the Rules" for the sake of brevity). The post of Under Secretary is to be filled up 100% by way of promotion from the feeder category of Section Officers as per length of service provided under the Rules. The post of Under Secretary is a selection post. According to Rule-17, every member of the service is required to pass the departmental examination, as prescribed in the Himachal Pradesh Departmental Examination Rules, 1997, as amended from time to time. The respondent-State under Article 309 of the Constitution of India has framed the Rules called "The Himachal Pradesh Departmental Examination Rules, 1997" notified on 13th March, 1997. The procedure for examination of answer books and publication of result is provided under Rule-12. It is stipulated in Rule-21 that in the eventuality of failure to pass the departmental examination, a member of the service shall not be eligible for: (i) crossing of efficiency bar/proficiency step-up/higher scale next due; (ii) confirmation in service even after completing of probationary period; and (iii) promotion to the next higher post. PETITIONER has passed the departmental examination on 19th May, 2000. He has made detailed representations for considering his candidature for post of Under Secretary against leave vacancy vide Annexures P-5, P-6, P-7 and P-8. PETITIONER sought the information regarding promotion on 7th October, 2008. He was supplied the information on 22.10.2008 vide Annexure P-11. It is evident from the contents of Annexure P-11 that a decision was taken to promote the petitioner as Under Secretary on ad hoc basis on 01.10.2008. However, a decision was taken on 11.10.2008, which is at page 68 of the paper-book that since three persons have become eligible before the issuance of promotion orders, their eligibility cannot be ignored. It was ordered that the promotion be made on the basis of seniority and merit. Respondent No. 4 was promoted on ad hoc basis to the post of Under Secretary on 18th October, 2008. Respondent No. 4 is at Sr. No. 36 of the seniority list. Respondents No. 5 and 6 were also promoted on ad hoc basis on 05.11.2008. They are at Sr. Nos. 52 and 60 of the seniority list. PETITIONER is at Sr. No. 62 of the seniority list. A regular D.P.C. was convened on 23.12.2010, whereby the petitioner has been promoted against the vacancies of 2009. Respondents No. 4 to 6 have also been promoted on regular basis w.e.f. 11.11.2008. Similarly, respondents No. 8 to 10 also stood promoted from the dates given against their names. It will be apt at this stage that the petitioner was considered for ad hoc promotion on 02.02.2009. The D.P.C. has taken into consideration the vacancies, which had fallen vacant in 2007, 2008, 2009 and 2010. PETITIONER has made a detailed representation against the promotions of private respondents vide Annexure P-6. The same was rejected on 02.05.2011 (Annexure P-18).

(2.) MR. Ajay Mohan Goel, learned counsel for the petitioner has strenuously argued that the private respondents have not qualified the departmental examination before the vacancies have fallen vacant in the cadre of Under Secretaries and, thus, they were ineligible to be considered for promotion to the post of Under Secretary. He then argued that in fact, the case of petitioner was approved for promotion to the post of Under Secretary on ad hoc basis as per the decision taken on 1st October, 2008. But, the respondents No. 4 to 6 were promoted vide decision dated 11.10.2008. He further contended that the A.C.Rs. of the petitioner could not be downgraded by the Departmental Promotion Committee in its meeting held on 23.12.2010. According to him, his client has earned outstanding entries and the same have been downgraded without assigning any reasons by the Departmental Promotion Committee. He then argued that the action of respondents to consider the case of respondents No. 4 to 6 for promotion to the posts of Under Secretary on ad hoc basis on the principle of seniority-cum-merit, was against the Recruitment and Promotion Rules.

(3.) LEARNED Advocates appearing on behalf of private respondents have supported the action of respondent-State, whereby they have been promoted initially on ad hoc basis as Under Secretaries and thereafter on regular basis as per notification dated 05.01.2011. They have also argued that their clients have qualified the departmental examination before the Departmental Promotion Committee met on 23.12.2010.