Himachal Pradesh High Court
R.R. Rana vs State Of H.P. & Ors on 10 March, 2025
( 2025:HHC:5502 )
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWPOA No. 2071 of 2019.
Reserved on : 28.02.2025.
Decided on : 10th March, 2025.
R.R. Rana ...Petitioner.
Versus
State of H.P. & Ors. ....Respondents.
Coram:
The Hon’ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner: Mr. C.N. Singh, Advocate
For the respondents: Mr. Sanjay Ranta, Advocate, for
respondents No.1 and 2 in both the
appeals.
Mr. Hemant K. Verma, Dy. A.G., for
respondents No.1 and 2.
Mr. Vikrant Thakur, Advocate, for
respondent No.3.
Satyen Vaidya, Judge.
By way of instant petition, the petitioner has
prayed for following substantive reliefs:-
“I. Issue a writ in the nature of certiorari, mandamus or
other appropriate writ or direction quashing Office
Order dated 1st May, 2012, (Annexure P-8).
ii. Issue a writ of mandamus directing the respondent
department and respondent No.3 to convene review
DPC and consider the case of the petitioner for
promotion of the post of Labour Officer from the due1
Whether reporters of the local papers may be allowed to see the judgment?
2 ( 2025:HHC:5502 )
date i.e. Sept., 2002 with all consequential benefits
or in alternative direct the respondent department
to promote the petitioner as Labour Officer w.e.f.
Sep., 2002.”
2. The case as pleaded by the petitioner is that he
was appointed as Labour Inspector on 08.08.1990. On
completion of five years of service as Labour Inspector, the
petitioner became eligible for being considered for promotion
to the post of Labour Officer. The post of Labour Officer fell
vacant in the month of September, 2002. The petitioner
being senior most Labour Inspector was though due for
consideration for promotion to the post of Labour Officer, but,
such consideration was stalled as one Shri Rajesh Kumar
preferred O.A. No.3289 of 2002, titled as Rajesh Kumar vs.
State of H.P. & Ors., before the H.P. State Administrative
Tribunal asserting his claim to be considered for promotion to
the post of Labour Officer on the premise that the post as per
the applicable roster was to be offered to the candidate from
the Scheduled Caste category and the said Shri Rajesh Kumar
being a scheduled caste candidate was entitled to be
considered. The petitioner in the instant petition was also
impleaded as respondent in the said petition. By way of
interim order passed by the erstwhile H.P. State
Administrative Tribunal, the process for further promotion was
3 ( 2025:HHC:5502 )
halted. Finally, the O.A. No.3289 of 2002 was dismissed vide
order dated 30th September, 2004. Thereafter, DPC was
convened and on its recommendation, the petitioner was
promoted as Labour Officer in the month of March, 2005.
3. The grievance raised by the petitioner is that he
was due for consideration for promotion to the post of Labour
Officer in September, 2002 and since the same was delayed
till March, 2005 without any fault on his part, the petitioner
was entitled to be promoted as Labour Officer w.e.f.
September, 2002 with all consequential benefits.
4. Petitioner preferred representations dated
15.01.2011 and 16.04.2012, however, the said
representations were rejected by the respondents vide
communication dated 01.05.2012 (Annexure P-8). Hence this
petition.
5. The respondents have contested the claim of the
petitioner on the ground that the promotion process for the
post of Labour Officer was not initiated due to pendency of
O.A. 3289 of 2002 before the erstwhile H.P. State
Administrative Tribunal. It was only after the dismissal of the
said O.A. that the DPC was convened and the petitioner was
promoted as Labour Officer w.e.f. March, 2005. It has further
been submitted that the delay had not been caused by the
4 ( 2025:HHC:5502 )
respondents intentionally and was only for the bonafide
reason of pendency of O.A. No.3289 of 2002. As per the
respondents, the petitioner was not entitled for promotion
from the retrospective date as promotional and financial
benefits cannot be granted without actually performing the
duties of the post concerned.
6. As regards the rejection of the representations of
the petitioner, the grounds stated in the rejection letter
(Annexure P-8) have been sought to be justified.
7. In rejoinder filed by the petitioner, he has placed
reliance on the opinion rendered by the law department on
the representations of the petitioner to assert the validity of
his claim.
8. I have heard learned counsel for the parties and
have also gone through the entire record carefully.
9. Learned counsel for the petitioner has contended
that the petitioner could not be made to suffer for no fault of
his. He has further contended that the promotion of
petitioner was delayed on account of an interim order passed
in O.A. No.3289 of 2002, which was finally dismissed on
merits. He placed reliance on judgment dated 24.03.2022
passed by a Division Bench of this Court in CWP No. 7794 of
2021, titled Sushil Kumar vs. State of H.P. & Ors., judgment
5 ( 2025:HHC:5502 )
dated 23.08.2014 passed by a coordinate Bench of this Court
in CWP No.1238 of 2013, titled Hem Chand vs. State of H.P. &
Ors., judgment dated 31.10.2023 passed by this Court in CWP
No. 3276 of 2023, titled Sanjay Kumar vs. State of H.P. & Ors.,
and another judgment passed by Division Bench of this Court
on 04.01.2022 in CWP No.4443 of 2019, titled as Poonam
Devi vs. State of H.P. & Ors.
10. The judgments relied upon by the learned counsel
for the petitioner, in my considered view cannot further the
case of the petitioner for the reason that all these judgments
have been passed in different sets of facts, where the initial
appointments of the petitioners therein were found and held
to have been delayed for unjustified reasons not attributable
to such petitioners. As regards the grant of promotion from
retrospective date is concerned, the Hon’ble Supreme Court
vide judgment dated 27.11.2024 passed in the matter of SLP
Diary No. 43488 of 2023, titled as Government of West
Bengal & Ors vs. Dr. Amal Satpathi & Ors., reported in
2024 SCC OnLine SC 3512 has held as under:-
“19. It is a well settled principle that promotion becomes
effective from the date it is granted, rather than from the date a
vacancy arises or the post is created. While the Courts have
recognized the right to be considered for promotion as not only a
statutory right but also a fundamental right, there is no
fundamental right to the promotion itself. In this regard, we may
gainfully refer to a recent decision of this Court in the case of ,
6 ( 2025:HHC:5502 )2024 SCC OnLine SC 1768, wherein it was observed as
follows:
“18. It is no longer res integra that a promotion is
effective from the date it is granted and not from
the date when a vacancy occurs on the subject
post or when the post itself is created. No doubt, a
right to be considered for promotion has been
treated by courts not just as a statutory right but
as a fundamental right, at the same time, there is
no fundamental right to promotion itself. In this
context, we may profitably cite a recent decision in Ajay
Kumar Shukla v. Arvind Rai, (2022)12 SCC 579 where,
citing earlier precedents in Director, Lift Irrigation
Corporation Ltd. v. Pravat Kiran Mohanty, (1991) 2 SCC
295 and Ajit Singh v. State of Punjab (1999)7 SCC 209,
a three-Judge Bench observed thus:
41. This Court, time and again, has laid emphasis on
right to be considered for promotion to be a fundamental
right, as was held by K. Ramaswamy, J., in Director,
Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty in
para 4 of the report which is reproduced below:
‘4. There is no fundamental right to promotion, but
an employee has only right to be considered for
promotion, when it arises, in accordance with
relevant rules. From this perspective in our view
the conclusion of the High Court that the gradation
list prepared by the corporation is in violation of
the right of respondent-writ petitioner to equality
enshrined under Article 14 read with Article 16 of
the Constitution, and the respondent-writ petitioner
was unjustly denied of the same is obviously
unjustified.’
42. A Constitution Bench in Ajit Singh v. State of Punjab,
laying emphasis on Article 14 and Article 16(1) of the
Constitution of India held that if a person who satisfies
the eligibility and the criteria for promotion but still is not
considered for promotion, then there will be clear
violation of his/her’s fundamental right. Jagannadha
Rao, J. speaking for himself and Anand, C.J.,
Venkataswami, Pattanaik, Kurdukar, JJ., observed the
same as follows in paras 22 and 27:
‘Articles 14 and 16(1) : is right to be considered for
promotion a fundamental right
7 ( 2025:HHC:5502 )
22. Article 14 and Article 16(1) are closely
connected. They deal with individual rights of the
person. Article 14 demands that the ‘State shall not
deny to any person equality before the law or the
equal protection of the laws’. Article 16(1) issues a
positive command that:
‘there shall be equality of opportunity for all
citizens in matters relating to employment or
appointment to any office under the State’.
It has been held repeatedly by this Court that clause
(1) of Article 16 is a facet of Article 14 and that it
takes its roots from Article 14. The said clause
particularises the generality in Article 14 and
identifies, in a constitutional sense “equality of
opportunity” in matters of employment and
appointment to any office under the State. The word
“employment” being wider, there is no dispute that it
takes within its fold, the aspect of promotions to
posts above the stage of initial level of recruitment.
Article 16 (1) provides to every employee otherwise
eligible for promotion or who comes within the zone
of consideration, a fundamental right to be
“considered” for promotion. Equal opportunity here
means the right to be “considered” for promotion. If a
person satisfies the eligibility and zone criteria but is
not considered for promotion, then there will be a
clear infraction of his fundamental right to be
“considered” for promotion, which is his personal
right. “Promotion” based on equal opportunity and
seniority attached to such promotion are facets of
fundamental right under Article 16(1).
* * * *
27. In our opinion, the above view expressed in
Ashok Kumar Gupta [Ashok Kumar Gupta v.
State of U.P. (1997)5SCC 201, and followed in
Jagdish Lal [Jagdish Lal v. State of Haryana,
(1997) 6 SCC 538, and other cases, if it is intended
to lay down that the right guaranteed to employees
for being “considered” for promotion according to
relevant rules of recruitment by promotion (i.e.
whether on the basis of seniority or merit) is only a
statutory right and not a fundamental right, we
cannot accept the proposition. We have already
8 ( 2025:HHC:5502 )
stated earlier that the right to equal opportunity in
the matter of promotion in the sense of a right to be
“considered” for promotion is indeed a fundamental
right guaranteed under Article 16(1) and this has
never been doubted in any other case before Ashok
Kumar Gupta [Ashok Kumar Gupta v. State of U.P.],
right from 1950.’
“20. In State of Bihar v. Akhouri Sachindra
Nathk, 1991 Supp (1) scc 334), it was held that
retrospective seniority cannot be given to an
employee from a date when he was not even borne
in the cadre, nor can seniority be given with
retrospective effect as that might adversely affect
others. The same view was reiterated in Keshav
Chandra Joshi v. Union of India, 1992 Supp (1)
SCC 272, where it was held that when a quota is
provided for, then the seniority of the employee
would be reckoned from the date when the vacancy
arises in the quota and not from any anterior date of
promotion or subsequent date of confirmation. The
said view was restated in Uttaranchal Forest
Rangers’ Assn. (Direct Recruit) v. State of U.P
(2006) 10 SCC 346, in the following words:
’37. We are also of the view that no retrospective
promotion or seniority can be granted from a date
when an employee has not even been borne in the
cadre so as to adversely affect the direct recruits
appointed validly in the meantime, as decided by
this Court in Keshav Chandra Joshi v. Union of India
held that when promotion is outside the quota,
seniority would be reckoned from the date of the
vacancy within the quota rendering the previous
service fortuitous. The previous promotion would be
regular only from the date of the vacancy within the
quota and seniority shall be counted from that date
and not from the date of his earlier promotion or
subsequent confirmation. In order to do justice to the
promotes, it would not be proper to do injustice to
the direct recruits.
38. This Court has consistently held that no
retrospective promotion can be granted nor can
any seniority be given on retrospective basis
from a date when an employee has not even
9 ( 2025:HHC:5502 )been borne in the cadre particularly when this
would adversely affect the direct recruits who
have been appointed validity in the meantime.”
(emphasis supplied)
20. In the instant case, it is evident that while respondent No. 1
was recommended for promotion before his retirement, he could
not assume the duties of the Chief Scientific Officer. Rule 54(1)
(a) of the West Bengal Service Rules, clearly stipulates that an
employee must assume the responsibilities of a higher post to
draw the corresponding pay, thus, preventing posthumous or
retrospective promotions in the absence of an enabling
provision.
21. While we recognize respondent No.1’s right to be considered
for promotion, which is a fundamental right under Articles 14
and 16(1) of the Constitution of India, he does not hold an
absolute right to the promotion itself. The legal precedents
discussed above establish that promotion only becomes
effective upon the assumption of duties on the promotional post
and not on the date of occurrence of the vacancy or the date of
recommendation. Considering that respondent No. 1
superannuated before his promotion was effectuated, he is not
entitled to retrospective financial benefits associated to the
promotional post of Chief Scientific Officer, as he did not serve
in that capacity.”
11. Learned counsel for the petitioner has also placed
reliance on the judgment passed by the Hon’ble Supreme
Court in the matter of Amarjeet Singh & Ors. vs. Devi
Ratan and others, reported in (2010)1 SCC 417 to assert
that no litigant can be allowed to derive any benefit from
mere pendency of case in the court of law as interim order
always merge in the final order. As per him a party cannot be
allowed to take any benefit of its own wrong by getting an
interim order and thereafter blame the court.
10 ( 2025:HHC:5502 )
12. In the facts of the case at hand, O.A. No. 3289 of
2002 was filed by a third person, not party to this litigation.
The respondents had not delayed the initiation of process for
promotion to the post of Labour Officer, rather it was on
account of an interim order passed by the erstwhile H. P.
State Administrative Tribunal that the respondents could not
undertake such process. Immediately after dismissal of O.A.
No. 3289 of 2002, the respondents completed the process by
convention of DPC and promoted the petitioner to the post of
Labour Officer. No malafide has been alleged or proved
against the respondents. The petitioner cannot even blame
the respondents for any laxity as the petitioner himself was a
party respondent in O.A. No.3289 of 2002 and he also could
not get the interim order vacated before the final disposal of
the O.A. No.3289 of 2002.
13. It is well settled proposition of law that
retrospectivity in promotion can be allowed only in
exceptional circumstances where an employer has willfully
and for malafide reasons denied the right of consideration of
an employee. That being not the case here, petitioner cannot
be held entitled for promotion from retrospective date.
14. Further it can be seen that the petitioner was
promoted as Labour Officer in the month of March, 2005. He
11 ( 2025:HHC:5502 )
accepted the promotion without any reservations. It was on
15.01.2011 that the petitioner for the first time made a
representation. In such view of the matter, the claim of the
petitioner also suffers from delay and laches more particularly
when no explanation has been rendered by the petitioner for
not agitating the matter within reasonable period of time.
15. For the foregoing reasons, there is no merit in the
instant petition and the same is accordingly dismissed.
Pending applications, if any, also stand disposed of.
(Satyen Vaidya)
Judge
10th March, 2025.
(jai)
[ad_1]
Source link