TEJ SINGH Vs. STATE OF H.P.

JUDGEMENT

(1.) THE petitioner joined the respondent department in the year 1962 as Agriculture Inspector. He was promoted as Assistant Development Officer. The post of Assistant Development Officer is in the feeder cadre for promotion to the post of Block Development Officer. A telegram was received by respondent No. 3 whereby respondent No. 2 had called options for promotion to the post of Block Development Officer. This communication was sent on 27th September, 1990 which was received by the petitioner on 6th October, 1990. He gave his option on 11th October, 1990 to be considered for the post of Block Development Officer. This communication was received by the department on 16th October, 1990. The Department Promotion Committee was convened by the respondent/department for effecting promotion to the post of Block Development Officer on 18th July, 1991. The case of the petitioner was not considered by the Department Promotion Committee and respondents No. 4 to 7 were promoted to the post of Block Development Officer. He made a representation to the higher authorities on 11th September, 1991. The petitioner was informed on 31st December, 1991 that a telegram was sent to him seeking his option. The respondents instead of redressing the grievance of the petitioner again made promotions whereby the persons junior to the petitioner were considered and promoted to the post of Block Development Officer. The Court had directed to respondents to decide the representation of the petitioner on 17th December, 2008. The same has been rejected by the Secretary.

(2.) IT is not disputed that the petitioner was fully eligible and qualified to be considered for promotion to the post of Block Development Officer from the feeder category of Assistant Development Officer. The communication was sent on 27th September, 1990 whereby options were to be called from the candidates to be considered for the post of Block Development Officer. This communication was received by the respondent No. 3 on 6th October, 1990 in the evening. The petitioner gave his option on 11th October, 1990 and the same was received in the department on 16th October, 1990. The Department Promotion Committee was convened on 18th July, 1991. The option of the petitioner had reached the department before the convening of the Department Promotion Committee on 18th July, 1991. The petitioner was required to give his option on or before 6th October, 1990 as per Annexure A -1 dated 27th September, 1990. How the petitioner could give his option on or before 6th October, 1990 if the letter has been received by the petitioner on 6th October, 1990. If the petitioner had been informed about the letter dated 27th September, 1990 within a reasonable period of 1 to 3 days, he could have exercised his option within a week. In the present case, the petitioner has been informed about his option on 6th October, 1990. He exercised his option within five days and the department received the same on 16th October, 1990. It is also not in dispute that the petitioner was senior to respondents No. 4 to 7, who have been promoted on 18th July, 1991. It is a case where the maxim of lex non cogit ad impossibilia can be involved. The petitioner cannot be faulted in any manner for not giving the option within the reasonable time as discussed hereinabove. It is not the case of respondents that petitioners option had been received after the convening of Department Promotion Committee on 18th July, 1991. To the contrary, the case of the respondents is that the option of the petitioner, in fact, was received on 16th October, 1990. There is no reason forthcoming why the petitioner has been left out from being considered for promotion to the post of Block Development Officer on 18th July, 1991 and on subsequent dates. It is true that promotion is not a Fundamental Right, however, to be considered for promotion is a Fundamental Right under Articles 14 and 16 of the Constitution of India. The Court is of the firm opinion that in the present case the petitioner has been left out from being considered for the post of Block Development Officer for no fault of his. It is only due to insensitivity of the system that the petitioner has been left out from consideration for the post of Block Development Officer on 18th July, 1991.