Himachal Pradesh High Court
Date Of Decision: 29.05.2025 vs State Of H.P. And Another on 29 May, 2025
Author: Sandeep Sharma
Bench: Sandeep Sharma
2025:HHC:16644
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.5315 of 2024
Date of Decision: 29.05.2025
_______________________________________________________
Yog Raj .......Petitioner
Versus
State of H.P. and Another ....Respondents
_______________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner: Mr. Onkar Jairath and Mr. Anshul Jairath,
Advocates.
For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr.
B.C. Verma, Additional Advocates General,
with Mr. Ravi Chauhan, Deputy Advocate
General, for State.
_______________________________________ _____________
Sandeep Sharma, Judge (oral):
Petitioner herein, who at present is working as Work
Inspector in the office of Himachal Pradesh Public Works Department,
being aggrieved of order dated 06.12.2019 (Annexure P-4), whereby
he has been denied promotion to the post of Work Inspector w.e.f.
2013 with all consequential benefits, has approached this Court in the
instant proceedings, praying therein for following main reliefs:
“i. That the impugned office order dated 07.05.2024 at
Annexure P-13, whereby, the claim of the petitioner for promotion to
the post of Work Inspector w.e.f. due date i.e. 2005 has been
rejected, may very kindly be quashed and set aside, in the interest
of justice.
ii. That the respondent department may very kindly be directed
to held the petitioner entitled for promotion to the post of Work1
Whether the reporters of the local papers may be allowed to see the judgment?
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-2-Inspector w.e.f. 2005 instead of 06.12.2019 by convening review
DPC with all consequential benefits in the interest of justice.
Iii. That the office order dated 06.12.2019 Annexure P-4,
whereby the petitioner has been promoted to the post of Work
Inspector may very kindly be quashed and set aside to the extend
that instead of promoting the petitioner w.e.f. 06.12.2019 he may be
promoted as Work Inspector w.e.f. 2005 with all consequential
benefits, in the interest of justice.
2. For having bird’s eye view, relevant facts, as emerge
from the pleadings adduced on record by the respective parties, are
that in the month of February 1991, petitioner was initially appointed
as Beldar with the respondent-department i.e. Himachal Pradesh
Public Works Department. In afore capacity, petitioner worked till
June 1993 and thereafter, he was assigned the duties of Storekeeper,
though not formally designated. On 28.07.2023, petitioner was
brought on work charge basis as Beldar, however, subsequently, vide
order dated 24.03.2008, respondent-department rectified its mistake
and granted retrospective work charge status w.e.f. 01.01.2001 based
on long-term service (Annexure P-3). On 06.09.1997, respondent-
department framed Recruitment & Promotion Rules (for short, ‘R&P
Rules’) for the post of Work Inspector and notified the same on
05.05.1995, which subsequently came to be amended vide
notification dated 06.09.1997 (Annexure P-10). As per R&P Rules,
1997, post of Work Inspector was required to be filled-up 50% by way
of promotion and 50% by way of direct recruitment. Clause 11(ii) of
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the Rules, 1997, provided for promotion of work charged
Mates/Beldar who are working on roads/building and who have not
been attached with any particular trade, such as Carpenter,
Electricians, Plumber etc., having minimum 5 years services and
possessing minimum qualification, failing which by direct recruitment.
Rules further provided that essential qualification as mentioned in
Rule 7(2) shall not be applicable to those daily waged/work charged
workers who joined their services on or before the notification of these
rules for their appointment/promotion. Since petitioner herein had
completed five years of regular service in the year 2006 and he was
initially engaged as a Beldar in the year 1991, essential qualification,
as mentioned in Rule 7(2) of the R&P Rules could not be made
applicable in his case.
3. Vide Notification dated 1.10.2008 (Annexure P-11), Clause 10
was amended whereby 60% quota was provided for direct recruits
and 40% quota for promotees (failing which by way of direct
recruitment on regular basis or on contractual basis). Clause 11 of
amended Rules provided for 15% quota to Mates/Beldars having
diploma/degree in civil engineering, with service of three years, 15%
quota for such employees, having ITI certificate in the trade
concerned or its equivalent qualification and 10% amongst the mates
who are matriculate or its equivalent from the recognized Board.
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4. Petitioner, who had completed Diploma in Civil
Engineering in the year 2010 from Indira Gandhi National Open
University (for short, ‘IGNOU’), with prior approval and due
permission of the respondent-department, also became eligible for
promotion to the post of Work Inspector, in terms of amended rules,
which came to be notified vide notification dated 01.10.2008.
However, despite there being availability of post, petitioner was not
considered for promotion to the post of Work Inspector in the year
2013, on account of the fact that he does not possess requisite
qualification.
5. As per reply filed by the respondents, though petitioner
had Diploma in trade concerned, but since same was not recognized,
he could not be considered for promotion in the year 2013.
Interestingly, respondents, subsequently on the basis of similar
Diploma issued by IGNOU, promoted petitioner to the post of Work
Inspector on regular basis vide order dated 06.12.2019, whereas
petitioner was actually eligible for such promotion in the year 2013
itself. It has been averred in the reply filed by the respondents that
since in the year 2017, it stood clarified on account of judgment
passed by Hon’ble Apex Court in SLP No.19851-19852 of 2020, titled
Orissa Lift irrigation Corporation Vs. Rabi Shankar Patro and
Others, along with connected SLPs, decided on 03.11.2007, that
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Diploma/Degree obtained from deemed universities up to the year
2007-08 can only be considered for promotion and in case through
IGNOU, up to year 2009-2010, petitioner’s case was considered for
promotion to the post of Work Inspector in the year 2019, when post
of Work Inspector became available. Besides above, it has been also
stated in the reply filed by the respondents that prayer made in the
instant petition cannot be accepted on account of delay and laches. It
is averred in the petition that since petitioner remained silent for
number of years and at no point of time, raised objection with regard
to his promotion in the year 2019, he, being fence-sitter, cannot be
granted any relief at this belated stage.
6. Precisely, the grouse of the petitioner, as has been
highlighted in the petition and further canvassed by Mr. Onkar Jairath,
learned counsel representing the petitioner is that though petitioner,
on account of his having done Diploma in the trade concerned in the
year 2010, had become eligible for promotion to the post of Work
Inspector in the year 2010, but yet, for no fault of him, he was denied
promotion to the post in question for more than six years.
7. While making this Court peruse documents adduced on
record, especially vacancy position of Work Inspector during the year
2011-12 under HPPWD, received through RTI (Annexure P-5), Mr.
Onkar Jairath, learned counsel representing the petitioner submitted
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that though in the year 2013, there were 13 posts of Work Inspector,
but yet, no DPC was convened, that too on flimsy grounds that
petiitoner does not possess requisite qualification. He submitted that
once it is not in dispute that even in the year 2019, petitioner came to
be given promotion on the basis of Diploma, obtained by petitioner
through IGNOU in the year 2010, there was otherwise no occasion, if
any, for respondents to deny promotion to him in the year 2013, on
the ground that he did not possess requisite qualification. Mr. Onkar
Jairath, learned counsel representing the petitioner further submitted
that though in the year 2017, Hon’ble Apex Court in Orissa Lift
Irrigation Corporation (supra) clarified that mandate given in
aforesaid judgment is with regard to Degrees awarded through
distance mode, but there is nothing on record to suggest that prior to
passing of aforesaid judgment, there was any rule or notification,
issued by the State of Himachal Pradesh, stating therein that Diploma
obtained from IGNOU would not be considered for promotion. While
making this Court peruse impugned order dated 07.05.2024
(Annexure P-13), passed by Engineer-in-Chief, HPPWD, Shimla,
upon the representation filed by the petitioner, pursuant to direction
issued by this Court in CWP No.3841 of 2021, titled as Yog Raj Vs.
State of H.P. and Others, decided on 27.06.2021, Mr. Onkar Jairath,
learned counsel representing the petitioner submitted that as per own
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case of the respondents, Diploma obtained by the petitioner on
31.08.2010 from IGNOU was recognized, if it is so, there was no
occasion for respondents to not consider the petitioner for promotion
against the post in question in the year 2013, when more than 13
posts of Work Inspector were available. Mr. Onkar Jairath, learned
counsel representing the petitioner invited attention of this Court to
judgment dated 16.03.2023, passed by this Court in CWPOA No.7408
of 2020, titled as Prem Lal Vs. State of Himachal Pradesh and
Others, to contend that in similar facts and circumstances of the case,
this Court, having taken note of the fact that petitioner in that case had
done Diploma in Civil Engineering from Janardan Rai Nagar
Vidyapeeth, Rajasthan, through distance mode in the year 2012,
directed respondents to promote the petitioner against the post of
Junior Engineer (Civil) from the date his juniors were promoted to the
post in question.
8. Mr. Onkar Jairath, learned counsel representing the
petitioner also placed reliance upon the judgment passed by this
Court in CWP No.3993 of 2021, titled as Jitender Singh Rangta and
Others Vs. State of Himachal Pradesh and Another, along with
connected matter, to state that posts, which earlier could only be filled
up in relevant year, can be subsequently filled up following the
procedure laid down in Clause 16.29 of Chapter 16 of Handbook on
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Personnel Matters (Vol.1). He submitted that in afore case, since
petitioner was wrongfully denied promotion in the relevant year, this
Court directed respondents to hold review DPC for promoting the
petitioners therein for promotion to the post of Group Instructor, as per
procedure contained in Clause 16.29 of Handbook on Personnel
Matters, by preparing year-wise vacancy position and consider them
for promotion to the post of Group Instructor, from the date, they had
attained eligibility and posts became available.
9. To the contrary, Mr. B.C. Verma, learned Additional
Advocate General, while justifying the impugned action of
respondents submitted that petitioner herein cannot claim promotion
by way of right, because it is well-settled that employee though has
right to be considered for promotion, but he cannot claim promotion,
as a matter of right. Mr. B.C. Verma, learned Additional Advocate
General further contended that since till the year 2017, there was no
clarity with regard to recognition of the Diploma obtained through
IGNOU, case of the petitioner for promotion to the post of Work
Inspector was rightly not considered. He submitted that Hon’ble Apex
Court in Orissa Lift Irrigation Corporation (supra) clarified that
Diploma obtained through IGNOU up to the year 2009-10, from
distance mode, shall be recognized and thereafter DPC for promotion
of the petitioner to the post of Work Inspector was convened in the
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year 2019, when post became available, however, Mr. B.C. Verma,
learned Additional Advocate General, was unable to dispute that in
the year 2013, 13 posts of Work Inspector were available. While
inviting attention of this Court to judgment dated 18.05.2023 passed
by this Court in CWP No.5122 of 2020, titled as Vinyak Kashyap Vs.
State of H.P. and Another, Mr. B.C. Verma, learned Additional
Advocate General, submitted that prayer made on behalf of the
petitioner through instant petition deserves to be dismissed, being
barred by delay and laches. He submitted that since petitioner
remained silent for more than seven years and at no point of time,
raised objection with regard to promotion granted to him in the year
2019, he, being fence-sitter, is not entitled to relief, as prayed for in
the instant petition. Mr. B.C. Verma, learned Additional Advocate
General, while referring to afore judgment, further argued that
promotion cannot be claimed from the date of vacancy, rather,
promotion can be claimed from the date, employee concerned was
considered for promotion.
10. Having heard learned counsel representing the parties
and perused material available on record, this Court finds that there is
no dispute with regard to promotion of the petitioner to the post of
Work Inspector in the year 2019. It is also not in dispute that after
being promoted to the post of Work Inspector in the year 2019,
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petitioner approached this Court by way of CWP No.3848 of 2021,
praying therein that he be given promotion from due date i.e. from the
year 2013, but this Court, instead of returning finding on merit,
permitted petitioner to make representation to the competent
authority. Pursuant to afore order passed by this Court, petitioner
herein filed representation to the department concerned, which
ultimately came to be decided vide order dated 07.05.2024 (Annexure
P-13). If the afore order is read in its entirety, this Court finds that no
plausible explanation has been rendered on record for not granting
promotion to the petitioner from due date i.e. from the year 2013.
Interestingly, afore order itself suggest that in the year 2010, petitioner
was in possession of recognized Diploma awarded by IGNOU, and
same was recognized, if it is so, there was no occasion, if any, for
respondents to not consider the case of the petitioner for promotion in
the year 2013, when admittedly 13 vacancies of Work Inspector were
available, as is evident from the information received by the petitioner
under RTI Act (Annexure P-5). If the reply filed by the respondents is
perused in its entirety, there is no specific denial to the effect that in
the year 2013, 13 posts of Work Inspector were available.
Immediately, after passing of order dated 07.05.2024 (Annexure P-
13), petitioner approached this Court in the instant proceedings.
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11. Judgment passed by this Court in Vinyak Kashyap and
Others (supra), pressed into service by learned Advocate General,
cannot be said to have any application in the case at hand for the
reason, that in afore case, petitioners, after their having accepted
promotion, remained silent for more than four years. After expiry of
four years, they filed petition stating therein that they were entitled to
promotion from the year 2010, which actually was granted to them in
the year 2014. However, in the instant case, petitioner remained
vigilant throughout.
12. True it is that in the year 2010, when for first time,
petitioner was ignored for promotion, petitioner had not approached
competent Court of law, but it clearly emerges from the pleadings as
well as documents adduced on record by the petitioner that at
relevant time, he had submitted representation to the department
concerned for promotion to the next higher post under Rules,
however, same was not paid any heed. It is also true that after being
denied promotion in the year 2010, petitioner remained silent till the
filing of the petition at hand, but once it is apparent that cause of
action to file petition actually accrued to petitioner on account of
passing of order dated 07.05.2024 (Annexure P-13), whereby for first
time, reasons came to be disclosed to the petitioner for his not being
promoted to the post of Work Inspector in the year 2013, this Court is
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not persuaded to agree with Mr. B.C. Verma, learned Additional
Advocate General, that petitioner being fence-sitter, cannot be
granted relief, as has been prayed in the instant petition. As has been
noticed hereinabove, prior to filing the petition at hand, petitioner had
approached competent Court of law in the year 2021 by way of CWP
No.3848 of 2021, praying for similar relief, as has been prayed in the
present petition, but at that time, he was relegated to authority
concerned by way of representation, which ultimately came to be
rejected, vide order dated 07.05.2024 (Annexure P-13).
13. Similarly, findings returned by this Court in Vinyak
Kashyap and Others (supra), taking note of various judgments
passed by Hon’ble Apex Court with regard to right to consideration of
promotion, cannot be made applicable in the case, because such
observations have been made in totally different context. Since in
afore case, petitioner approached four years after his promotion, this
Court, having taken note of the fact that petitioner remained silent
spectator, observed that promotion cannot be claimed as a matter of
right, rather, employee has a right of consideration.
14. Since steps, if any, for convening DPC was to be taken
by the department and in that regard, no action, if any, was to be
taken by the employee, omission, if any, on the part of the
respondents to not convene DPC in the year 2013 for considering the
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petitioner for promotion to the post of Work Inspector, cannot be a
reason for this Court to reject the prayer made on behalf of the
petitioner. Since in the year 2013, 13 posts of Work Inspector were
available, coupled with the fact that department was fully aware of the
fact that Diploma awarded by IGNOU is recognized, there was no
prohibition or impediment, if any, for department to convene DPC in
the year 2013 itself, but for no cogent and convincing reason,
department waited till the year 2019, when, on the basis of Diploma
issued by IGNOU, which at one point of time was not considered to be
valid for promotion, respondents proceeded to grant promotion to the
petitioner against the post of Work Inspector but w.e.f. the year 2019.
15. Though much stress came to be laid on the judgment
passed by Hon’ble Apex Court in Orissa Lift Irrigation Corporation
(supra), but if the aforesaid judgment is read in its entirety, it clearly
reveals that Hon’ble Apex Court clarified that Diploma granted by
IGNOU in the year 2009-10 shall be recognized for promotion, but
prior to passing of the judgment, no document/instructions, ever came
to be issued by the Government, specifically clarifying therein that
Diploma issued/granted by IGNOU, through distance mode, shall not
be recognized for promotion. Otherwise also, R&P Rules for the post
in question, if perused in its entirety, nowhere speaks about Diploma,
if any, awarded through distance mode, rather, specific expression
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has been used that Diploma should be awarded by recognized
University. Once it is not in dispute that IGNOU was recognized
University, Diploma awarded by it through distance mode, otherwise
could not have been ignored by the respondents in the year 2013.
16. However, after having carefully perused judgment
rendered by Hon’ble Apex Court in Orissa Lift Irrigation
Corporation (supra), this Court finds merit in the contention of Mr.
Onkar Jairath, learned counsel representing the petitioner that in
aforesaid judgment, Hon’ble Apex Court has observed nothing with
regard to Diplomas, rather that judgment specifically deals with the
degrees, if any, awarded by deemed Universities through distance
mode. At this stage, Mr. B.C. Verma, learned Additional Advocate
General, while fairly admitting that finding given by the Hon’ble Apex
Court is with regard to degrees, vehemently argued that analogy
would remain same, especially when Hon’ble Apex Court stated that
degrees obtained through distance mode shall not be taken as
eligibility for appointment and promotion. However, this Court is not
impressed with aforesaid contention of learned Additional Advocate
General for the reason that in Para No.3 of the afore judgment,
Hon’ble Apex Court, while disposing of M.A No.38 of 2018 in C.A
No.17907 of 2017, has clarified that paragraphs No.34 and 46 of the
judgment pertains to validity of degrees in engineering conferred by
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the deemed to be Universities through distance education mode and
this Court was not called upon to consider validity of diplomas
conferred by such deemed to be Universities. In the aforesaid paras,
Hon’ble Apex Court clearly ruled that validity of courses leading to
Diplomas was not the subject matter of the judgment, meaning
thereby ruling given by the Hon’ble Apex Court strictly pertains to
degrees awarded by the deemed Universities through distance
education mode and as such, same could not be made applicable in
the cases of Diplomas, if any, obtained through distance mode. It
would be apt to take note of following paras of aforesaid judgment
herein below:-
“1. M.A. No. 38 of 2018 in C.A. No.17907/2017 The applicant, IASE,
Deemed to be University seeks clarification that the judgment
applied only to courses leading to degrees in Engineering awarded
by Deemed to be Universities through distance education mode and
that diploma courses are not covered by the judgment.
Mr. M.L. Verma, learned Senior Advocate invited our attention to the
advertisement issued by AICTE. His submissions on the issue in
question are on lines similar to the submissions advanced by Mr.
Dhruv Mehta, learned Senior Advocate.
2. We also heard Mr. Maninder Singh, learned Additional Solicitor
General who appeared on behalf of AICTE.
3. It is true, as is evident from paragraphs 34 and 46 of the
judgment that the controversy in the present case pertained to
validity of degrees in Engineering conferred by the Deemed to be
Universities through distance education mode and this Court was
not called upon to consider validity of diplomas conferred by such
Deemed to be Universities. However the advertisement issued by
AICTE covers diploma courses as well. We therefore accept the
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-16-submissions advanced by Mr. Dhruv Mehta and Mr. M.L. Verma,
learned Senior Advocates and clarify that validity of such courses
leading to diplomas was not the subject matter of the judgment.
4. At the same time, courses leading to award of degrees, whether
graduate or post graduate degrees, was certainly the matter in
issue. We therefore reject the submission of Mr. Kapil Sibal, learned
Senior Advocate and do not find any infirmity in the understanding
of and the advertisement issued by AICTE.
5. Mr. Anupam Lal Das, learned Advocate is right that JRN, AAI and
IASE had no expertise in the field or subjects of Engineering and the
status of Deemed Universities conferred on them was not because
of their excellence in the field of Engineering. As against these three
Deemed to be Universities, the case of VMRF stood on a better
footing as its field of activity and excellence also included subjects in
Engineering. However that was not the only basis of the judgment.
The facts still remain that conferral of degrees in Engineering
through distance education mode was never approved in principle
by AICTE and the Study Centres were never inspected or approved.
We therefore reject the submission of Mr. Anupam Lal Das, learned
Advocate.
6. If award of degrees in Engineering through distance education
mode by Deemed to be Universities, as a concept or principle was
not accepted by AICTE, it is immaterial whether the Study Centre in
question was ITM International. Said Institution was not by itself
authorized to award degrees in Engineering on its own nor was it
affiliated to any State or Central University at the relevant time. The
courses conducted by said institution led to award of degrees of
AAI, which had no expertise or excellence in the field of Engineering
and through distance education mode. We therefore reject the
submission advanced by Ms. Meenakshi Arora, learned Senior
Advocate.
7. We now turn to the general submission advanced by all the
learned counsel that the candidates after securing the degrees in
Engineering through distance education mode, have advanced in
career and that their ability was tested at various levels and as such
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dispensed with in their case. We cannot make any such exception.
The infirmity in their degrees is basic and fundamental and cannot
be wished away. At the same time, we find some force in their
submission that if the suspension of their degrees and all
advantages were to apply as indicated in the judgment, the
concerned candidates may lose their jobs and even if they were to
successfully pass the test, restoration of their jobs and present
position would pose some difficulty.
We, therefore, as a one-time relaxation in favour of those
candidates who were enrolled during the academic years 2001-
2005 and who, in terms of the judgment, are eligible to appear at the
test to be conducted by AICTE, direct:-
a). All such candidates, who wish to appear at the forthcoming test
to be conducted by AICTE in May-June 2018 and who exercise
option to appear at the test in terms of the judgment, can retain the
degrees in question and all the advantages flowing therefrom till one
month after the declaration of the result of such test or till
31.07.2018 whichever is earlier.
b) This facility is given as one-time exception so that those who
have the ability and can pass the test in the first attempt itself,
should not be put to inconvenience. If the candidates pass in such
first attempt, they would be entitled to retain all the advantages. But
if they fail or choose not to appear, the directions in the judgment
shall apply, in that the degrees and all advantages shall stand
suspended and withdrawn. At the cost of repetition, it is made clear
that no more such chances or exceptions will be given or made.
They will undoubtedly be entitled to appear on the second occasion
in terms of the judgment but this exception shall not apply for such
second attempt.
c). We direct AICTE to conduct the test in May-June 2018 and
declare the result well in time, in terms of our directions in the
judgment and this Order. AICTE shall however extend the time to
exercise the option to appear at the test suitably.
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8. Except for the directions given in the preceding paragraph i.e.
paragraph 7 and the clarification as regards courses leading to
award of diplomas as mentioned hereinabove, we reject all the other
submissions.”
17. Careful perusal of aforesaid judgment clearly reveals that
findings in the aforesaid judgment directly relate to degrees conferred
by deemed Universities through distance mode and Diplomas
obtained through distance education mode have been specifically
excluded by Hon’ble Apex Court while returning findings, as have
been taken note hereinabove.
18. In view of aforesaid specific clarification rendered on
record by Hon’ble Apex Court with regard to Diplomas obtained
through education mode, ground set up by the respondents to reject
the case of the petitioner for promotion is not tenable and as such,
deserves outright rejection. Moreover, if the judgment rendered by
Hon’ble Apex Court, is read in its entirety, it clearly reveals that
Hon’ble Apex Court despite holding that degrees conferred by
deemed Universities through distance education mode is not the
qualification, granted one time relaxation in that case, so that persons
already working are not put to hardship. In the instant case, petitioner
has been serving in the Department for more than 32 years and till
date, despite his being fully eligible, he was not considered for
promotion against the post of Work Inspector in the year 2013.
Leaving everything aside, once it is not in dispute that respondents
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ultimately gave promotion to petitioner in the year 2019 on the basis
of same Diploma, which was granted by IGNOU, same could not have
been otherwise ignored in the year 2013, when admittedly 13 posts of
Work Inspector were available, against which petitioner could be
promoted.
19. Though at this stage, Mr. B.C. Verma, learned Additional
Advocate General, attempted to argue that in any eventuality,
petitioner could not be considered for promotion in the year 2013,
against the vacancy, if any, for the year 2013, rather promotion could
only be given from the prospective date, but this Court is not
persuaded to agree with aforesaid submission of Mr. B.C. Verma,
learned Additional Advocate General. In nutshell, case of the
petitioner is that since he was eligible for promotion against the post
in question in the year 2013 and at relevant time, 13 posts were also
available, he should have been promoted from that date, but definitely
not from the date of convening of DPC. At this stage, it would be apt
to take note of clause 16.29, which reads as under:
“16.29 Cases where the DPC could not be held any year even
though some vacancies arose during that year
(a) Preparation of year wise select lists.
It has been decided that where the DPC could not be held in any
year even though some vacancies arose during that year, the DPC
that meets thereafter should follow the following procedure:-
(i) Determine the actual number of regular vacancies that
arose in each of the previous year/years immediately
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proposed to be filled in the current year separately.
(ii) Consider in respect of each year those officers only who
would be within the field of choice with reference to the
vacancies of each year starting with the earliest year
onwards.
(iii) Prepare a consolidated select list separately for each of
the years starting with the earliest year onwards including
the names of officers of reserved categories.
(iv) Prepare a consolidated select list by placing the select
list of the earlier year above the one for the next and so on.
The above decision is operative with effect from 23rd June, 1984,
i.e. the date on which the instructions were issued. It is clarified that
past cases already decided will not be reopened.
(H.P. Government Department of Personnel letter No. PER(AP-II) A
(1)-1/80-III, dated 23rd June, 1984-Annexure -16.24).”
20. Careful perusal of aforesaid instructions reveals that
where DPC could not be held in any particular year despite there
being availability of vacancies, promotion would be granted to the
eligible candidates after determining the actual number of regular
vacancies that arose in each of the previous year/years immediately
preceding and the actual number of regular vacancies proposed to be
filled in the current year separately. As per aforesaid procedure,
Departmental Promotion Committee would consider vacancies of
each year and shall prepare a consolidated list separately for each of
the year starting from the earliest year onward including the names of
the officers of the reserved categories.
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21. Since specific plea raised by the petitioner with regard to
availability of 13 posts in the year 2013 has not been denied by the
respondents in their reply, Mr. Onkar Jairath, learned counsel
representing the petitioner, is right in contending that petitioner, ought
to have been considered for promotion against the vacancy in the
year 2013. This Court also deems it necessary to take note of relevant
part of 16.6 and 16.7 of Handbooks on Personnel Matters (Vol.I),
which provides specific guidance on the subject of timely convening of
Departmental Promotion Committee and the duty of the department to
ensure that no eligible candidate is deprived of promotion, which
reads as under:
“16.6 Frequency at which D.P.C. should meet
The D.P.C. should be convened at regular annual intervals to draw
panels which could be utilized for making promotions against the
vacancies occurring during the course of a year. It has been
observed that Departments do not convene meetings of the D.P.Cs.
annually for various reasons even though eligible officers of the
lower grade were available and the vacanci.es in the higher grade
were also available for their promotion. This is often due to non-
finalization of the seniority list of officers at the lower grade which
forms the field of consideration. Sometimes, meetings of the D.P.C.
are also not convened annually under the impression that a panel,
prepared by a D. P. C. for filling “Selection” posts could be kept
operative for a period of one year and six months and that,
therefore, action to convene the next meeting of the Departmental
promotion Committee need be initiated only after the expiry of that
period. As delay in convening the D.P.C, meeting results not only in
financial loss to the concerned officers due to delay in their
promotion to the next higher grade but also affects them adversely
2025:HHC:16644
-22-in their future career in as much as their promotion to the next
higher grade is also delayed, it is necessary that the D.P.C. meeting
should be convened at regular intervals as indicated above. The
requirement of convening annual meetings of the DPC should only
be dispensed with after a certificate is issued by the respective
appointing authority to the effect that there no vacancies are to be
filled up by way of promotion or no officers/officials are due/eligible
for confirmation during the year, in question.
16.7 Time-schedule for holding meetings of D.P.C.
The instructions contained in H.P. Govt. Deptt. of Personnel letter
No. 1-13 /73-DP (A-II) dated 27-4-1993 (Annexure 16.18) provide
that the time schedule for hording of regular Departmental
Promotion Committee will be during the month of April-May. The
subsequent instructions issued vide letter. No. 1-13/75-DP (AP-II)
dared 14-2-1984 (Annexure 16.22) provided that meeting of the
Departmental Promotion Committee may be held once a year in the
month of April every year as far as possible. The latest instructions
contained in letter No. 1-13/75-DP(A-II) dated 6-9-1984 and letter
No. Per(AP-II)B(3)-1/94 dated 16-11-1994 (Annexures 16.25 and
16.55) provide that meetings of the Departmental Promotion
Committees for making promotions should be held during the first
quarter of the financial year as far as possible for all the existing and
anticipated vacancies. For unanticipated vacancies, fresh meetings
of the Departmental Promotion Committees for making promotions
should be held during the course of the year within three months
from the date of creation of the posts. In so far as the meetings of
the DPC for promotion to the posts falling within the purview of the
Himachal Pradesh Public Service Commission are concerned, the
time schedule for such meetings may be spread over the month
from April to December every year. Particulars of vacancies which
are likely to occur during the next twelve months may also be
furnished to the Commission by the end of the month of January
every year so that the time schedule for holding meetings of the
DPCs in respect of each department could be determined by the
Commission keeping in view the, existing vacancies and the
2025:HHC:16644
-23-vacancies likely to occur in the Department. This will enable the
Commission to arrange meetings of the DPC well in time.”
22. In the case at hand, though petitioner was eligible for
promotion in the year 2013, but yet department failed to convene DPC
for seven years, despite there being existence of clear vacancies,
thereby violating not only the statutory rules, but also the principles
enshrined in the Handbook on Personnel Matters, which are binding
administrative instructions having the force of law in service matter. It
is well established principle in service jurisprudence that once a
vacancy arises in the promotional post, it becomes incumbent upon
the appointing authority to take expeditious steps to convene the DPC
for considering all eligible candidates.
23. The failure of the respondent-department in convening
timely DPCs has directly led to the deprivation of the petitioner’s
promotion, despite his continued eligibility under both the 1997 and
2008 R&P Rules. Such dereliction on the part of the authorities not
only constitutes administrative negligence, but also defeats the
legitimate expectation of the petitioner. Reliance in this regard is
placed upon judgment passed by Hon’ble Apex Court in Union of
India Vs. Hemraj Singh Chauhan, 2010 (4) SCC 290, wherein it has
been categorically held that incumbents shall not suffer due to the
slackness or lethargic attitude of the administration and that delay in
holding DPCs resulting in loss of promotional opportunity to eligible
2025:HHC:16644
-24-
employees, amounts to grave injustice. Relevant part of afore
judgment, reads as under:
“38. 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.
39. In The Manager, Government Branch Press and Anr. v. D.B.
Belliappa – (1979) 1 SCC 477, a three judge Bench of this Court in
relation to service dispute, may be in a different context, held that
the essence of guarantee epitomised under Articles 14 and 16 is
“fairness founded on reason” (See para 24 page 486).
40. It is, therefore, clear that legitimate expectations of the
respondents of being considered for promotion has been defeated
by the acts of the Government and if not of the Central Government,
certainly the unreasonable in-action on the part of the Government
of State of U.P. stood in the way of the respondents’ chances of
promotion from being fairly considered when it is due for such
consideration and delay has made them ineligible for such
consideration. Now the question which is weighing on the
conscience of this Court is how to fairly resolve this controversy.”
24. Reliance placed by Mr. B.C. Verma, learned Advocate
General, upon the judgment dated 17.05.2014 passed by Division
Bench of this Court in CWP No.9271 of 2013, titled as Prakash
Chand Vs. State of H.P. and Another, along with other connected
matter, is wholly misplaced. If the aforesaid judgment is read in its
entirety, it clearly provides that normal rule of law is that nobody can
be promoted from a retrospective effect, except when there exist
2025:HHC:16644
-25-
facts, which necessitate so, or there is a rule, which permits so. In the
case at hand, as has been discussed in detail, petitioner is entitled to
promotion from retrospective date, because though he had become
eligible for promotion in the year 2013, but yet despite there being
availability of 13 vacancies, respondents for no cogent and convincing
reason, failed to convene DPC, till the year 2019. It has been
categorically ruled in aforesaid judgment that, in case due to
administrative reason, DPC could not be held in a year, then the
person cannot claim retrospective promotion in the absence of
malafides, since mala fide taints every act requiring a person wronged
to be placed in the position but for the malafides or tainted exercise of
power. There cannot be any quarrel with aforesaid proposition of law
laid down by Divison Bench of this Court, rather, same is required to
be respectfully followed. However, in the instant case, no cogent and
convincing reasons have been placed on record, for not convening
the DPC, save and except that clarification for first time with regard to
recognition of diploma awarded by IGNOU through distance mode,
came to be issued pursuant to judgment passed by Hon’ble Apex
Court in the year 2017 in Orissa Lift Irrigation Corporation (supra),
which contention raised by respondent-State, deserves rejection, for
the reason that prior to passing of the aforesaid judgment, there were
no instructions or rules, if any, of respondent-State specifically
2025:HHC:16644
-26-
prescribing therein that Diploma awarded by IGNOU through distance
mode shall not be recognized, rather, R&P Rules, if perused in its
entirety for the post in question, talks about the Diploma issued by
recognized University. It is none of the case of the respondents that
IGNOU is not a recognized University, rather impugned order passed
by competent authority itself suggests that Diploma awarded in favour
of the petitioner by IGNOU was recognized in the year 2010, if it is so,
there was otherwise no occasion, if any, for respondents to not to
convene DPC in the year 2013. Moreover, in the case before the
Hon’ble Apex Court, there were no rules, which mandated convening
of DPC twice in a year, however, in the instant case, Clause 16.6 and
16.7 of Handbook on Personnel Matter, as taken note hereinabove,
specifically provides for convening DPC twice in a year, so that rightful
claim for person, entitled for promotion, is not marred on account of
non-convening of DPC.
25. At this juncture, Mr. B.C. Verma, learned Additional
Advocate General has also placed reliance upon judgment passed by
Hon’ble Apex Court in Union of India and Others Vs. N.C. Murali
and Others, (2017) 13 SCC 575, to contend that unless there is a
specific rule, entitling applicants to receive promotion from the date of
occurrence of vacancy, right of promotion does not crystallize on the
date of vacancy and promotion is to be extended, on the date it is
2025:HHC:16644
-27-
actually effected, however, after having perused aforesaid judgment
in its entirety, this Court finds no application of the same in the case at
hand. In aforesaid judgment, precisely, it has been held that the right
of promotion does not crystallise on the date of occurrence of vacancy
and the promotion is to be extended on the date when it is actually
effected, unless there is specific rule entitling the applicants to receive
promotion from the date of occurrence of vacancy. As noted
hereinabove, in the State of Himachal Pradesh, Clauses 16.6 and
16.7 of the Handbook on Personnel Matters (Volume I) provide for the
convening of the Departmental Promotion Committee twice in a year.
The very purpose and object of afore Clause is that vacancy, if any, in
relevant year is filled in the same year, so that person eligible in that
particular year, is not subsequently deprived of promotion, on account
of the fact that for some reasons, DPC could not be convened earlier.
26. Mr. B.C. Verma, learned Advocate General, further
placed reliance upon judgment passed by Coordinate Bench of this
Court in Ramesh Kumar Thakur Vs. State of H.P. and Another,
CWP No.3256 of 2025, decided on 09.04.2025, to state that there is
no absolute right to promotion itself. Promotion become effective upon
assumption of duties on promotional post and not on date of
occurrence of vacancy or recommendation for promotion. However,
aforesaid judgment has no application in the case at hand for the
2025:HHC:16644
-28-
reason that petitioner in that case before approaching competent
Court of law stood superannuated, however, in the instant case,
petitioner was firstly denied promotion in the year 2013, despite there
being availability of vacancy on the ground that he does not possess
requisite qualification, but subsequently in the year 2019, on the basis
of similar qualification, he was granted promotion. Moreover,
petitioner is still in service and in case prayer made on his behalf for
considering his case from retrospective date is not considered, he
would continue to suffer, till his superannuation.
27. Consequently, in view of the above, this Court finds merit
in the present petition and accordingly the same is allowed and
impugned order dated 07.05.2024 (Annexure P-13) is quashed and
set-aside. Respondents are directed to consider the case of the
petitioner for promotion to the post of Work Inspector from due date,
i.e. from the year 2013, by convening Review DPC, by following due
procedure, as laid down in Clause 16.29 of Chapter 16 of Handbook
on Personnel Matters (Vol.1). Since petitioner has not worked against
the post of Work Inspector w.e.f 2013 to 2019, he shall be entitled to
notional benefit only along with seniority, but not monetary benefit.
Since petitioner has been fighting for his rightful claim for quite
considerable time, this Court hopes and trusts that needful shall be
2025:HHC:16644
-29-
done by the respondents expeditiously, preferably, within a period of
two months.
The writ petition stands disposed of in the above terms,
so also the pending miscellaneous application(s), if any.
p`
(Sandeep Sharma),
Judge
May 29, 2025
(Rajeev Raturi)
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