Shakti Chand Dogra Petitioner v. State Of Himachal Pradesh And Another S

Justice Rajiv Sharma, Judge.

Petitioner was appointed as T.G.T in the month of September, 1970. He was promoted as Head Master on 1.2.2000 Departmental Promotion Committee was held in the month of March, 2003 for filling up 194 posts of Principals from the category of Head Masters. Petitioner figured at Sr. No. 175 of the seniority list of Head Masters. However, fact of the matter is that Respondent-Department promoted 115 Head Masters as Principals and 79 candidates were not promoted. No reason has been assigned in the reply that why 79 candidates were left out for promotion though their cases were also considered. Departmental Promotion Committee was again convened in the month of January, 2004. However, the list for promotion was finalized only on 31.5.2004 and in the meantime, petitioner retired on 30.4.2004

2. Case of the petitioner, in a nutshell, is that though his case was also considered in the meeting of Departmental Promotion Committee held in the month of March, 2003 for promotion to the post of Principal from the post of Head Master, but the respondents have only restricted the promotions to 115 candidates out of 194 posts. Further case of the petitioner is that though the Departmental Promotion Committee met in the month of January, 2004, however, codal formalities were not completed and the list for promotion was finalized on 31.5.2004 and in the meantime, the petitioner has retired on 30.4.2004 Thus, the petitioner has been deprived of his fundamental right of consideration to the post of Principal. The respondents have not denied the convening of Departmental Promotion Committee in the month of March, 2003 and the petitioner being at Sr. No. 175 of the seniority list of Head Masters. Once the process has been initiated for filling up 194 posts of Principals from the feeder category of Head Masters, the same should have been completed by making promotions. Petitioner's case has also been considered by the Departmental Promotion Committee in the month of January, 2004, but the orders of promotion were finalized on 31.5.2004 and the petitioner has retired on 30.4.2004 Petitioner has been deprived of his right for promotion to the post of Principal due to lethargy and inaction on the part of respondents in completing the codal formalities. The only reason assigned is that certain formalities, i.e collection of ACRs etc. have taken time. This plea cannot be accepted. Case of the petitioner has already been considered in the month of January, 2003 and the ACRs are collected before the convening of Departmental Promotion Committee and not thereafter.

3. According to instruction No. 16.6 of the Handbook on Personnel Matters Vol-II (Second Edition), 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. According to instruction No. 16.7, the meeting of D.P.C may be held once a year in the month of April every year as far as possible. The latest instructions contained in letters dated 6.9.1984 and 16.11.1994 provide that meetings of the Departmental Promotion Committees for making promotions should he held during the first quarter of the financial year as far as possible for all the existing and anticipated vacancies and 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. It is also highlighted in these instructions that the 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 in their future career in as much as their promotion to the next higher grade is also delayed.

4. Their Lordships of the Hon'ble Supreme Court in Syed Khalid Rizvi v. Union of India, 1993 Supp (3) SCC 575 have held that preparation of annual select-list under IPS (Appointment by Promotion) Regulations, 1955 was mandatory and failure to do so would not result in collapse of rule 3(3)(b) of Seniority Rules. Their Lordships have further held that it would subserve the object of the Act and the rules and afford an equal opportunity to the promotee officers to reach higher echelons of the service. The dereliction of the statutory duty must satisfactorily be accounted for by the State Government concerned and the Court has taken serious note of wanton infraction. Their Lordships have held as under:

“9. It would, thus, be clear that the Selection Committee shall consider the eligibility and suitability of the members of the State Police Service on the basis of merit, ability and suitability. Seniority will be considered only where merit, ability and suitability are approximately equal and it should prepare the select-list of such suitable officers in the order of merit in each category such as ‘outstanding’, etc. and send the select-list in order of seniority to the State government who with its comments would forward the same to the UPSC for approval. The UPSC again would review the list, if necessary, with prior notice to the State government and revise the order of names (seniority) in the list which should be final and operative for a period of 12 months. The list should consist of such number plus 20 per cent or two officers whichever is more and of three times the anticipated substantive vacancies in the cadre posts. The appointment to the cadre posts should be made by the central government in the order in the list on the recommendation of the State government. The word “may” in Regulation 5 indicates that the Committee ordinarily meets at intervals not exceeding one year. Though the word “may” indicates that it is not mandatory to meet at regular intervals, since preparation of the select-list is the foundation for promotion and its omission impinges upon the legitimate expectation of promotee officers for consideration of their claim for promotion as INDIAN POLICE SERVICE officers, the preparation of the select-list must be construed to be mandatory. The Committee should, therefore, meet every year and prepare the select-list and be reviewed and revised from time to time as exigencies demand. No officer whose name has been entered in the list has a vested right to remain in the list till date of appointment. The list would be liable to shuffle and the name may be excluded from the list on the comparative assessment of merit, ability and suitability based on the nticipated or expected availability of the vacancies within quota etc. The junior may supersede the senior and may be ranked top.

34. It is next contended that by non-preparation of the select-list, the promotees had lost their chances of promotion to get into super timescales of pay and so on. Preparation of the annual seniority list is, therefore, mandatory and that by its non-preparation the rules have been collapsed. The argument ex facie is alluring but lost validity on close scrutiny. The contention bears two facets: firstly preparation of the seniority list and secondly the consequences flowing from the omission to prepare the seniority list. It is already held that the Committee shall prepare the seniority list every year and it shall be reviewed and revised from time to time taking into account the expected or anticipated vacancies during the year plus 20 per cent or two vacancies whichever is more. It is already held that a wide distinction exists between appointment by direct ecruitment and one under Regulation 9 of Promotion Regulations and Rule 9 of Recruitment Rules on the one hand and under Regulation 8 thereof read with Rule 9 of Cadre Rules on the other hand. Their consequences are also distinct and operate in different areas. Prior approval of the Union public service commission and prior concurrence of the central government are mandatory for continuance of temporary appointment under Regulation 8 beyond six months and three months respectively together with prompt report sent by the State government supported by reasons therefor. In their absence it is not a valid appointment in the eye of law. Unless an officer is brought on the selectlist and appointed to a senior cadre post and continuously officiated thereon he does not acquire right to assignment of the year of allotment. Eligibility age for consideration was only up to 52 years and presently 54 years. If the list was not prepared, though for the succeeding year the agebarred officers may be considered but were made to compete with junior officers who may eliminate the senior officer from the zone of consideration. Suppose in 1980 the senior officer was not qualified though the list was made, but in 1981 he could improve and become eligible. Non-preparation of the select-list for 1980 disables the officer to improve the chances. In Sehgal case, this court held that chances of promotion and the aspiration to reach higher echelons of service would enthuse a member of the service to dedicate himself assiduously to the service with diligence, exhibiting expertise, straightforwardness with missionary zeal, self-confidence, honesty and integrity. The absence of chances of promotion would generate frustration and an officer would tend to become corrupt, sloven and a mediocre. Equal opportunity is a fertile resource to augment efficiency of the service. Equal chances of promotion to the direct recruits and the promotees would produce harmony with accountability to proper implementation of government policies. Unless the select-list is made annually and reviewed and revised from time to time, the promotee officers would stand to lose their chances of consideration for promotion which would be a legitimate expectation. This court in Mohan Lal Capoor case held that the Committee shall prepare every year the select-list and the list must be submitted to the UPSC by the State government for approval and thereafter appointment shall be made in accordance with the rules. We have, therefore, no hesitation to hold that preparation of the select-list every year is mandatory. It would subserve the object of the Act and the rules and afford an equal opportunity to the promotee officers to reach higher echelons of the service. The dereliction of the statutory duty must satisfactorily be accounted for by the State government concerned and this court takes serious note of wanton infraction.”

5. Similarly, their Lordships of the Hon'ble Supreme Court in Union of India v. Vipinchandra Hiralal Shah, (1996) 6 SCC 721 have held that unless there are good reasons for not preparing select list for promotion to IAS, the Selection Committee is required to meet every year for the purpose of making the selection from amongst the State Civil Service Officers who fulfill the conditions regarding eligibility on the first day of January of the year in which the Committee meets and fall within the zone of consideration as prescribed in clause (2) of Regulation 5. The failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement of preparing the Selection List for that year. Their Lordships have further held that if for reason the Selection Committee is not able to meet during a particular year, the Committee when it meets next should while making the selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the State Civil Service officers, were eligible and fell within the zone of consideration for selection in that year. Their Lordships have held as under:

“7. If clause (1 is read with the other provisions in Regulation 5 referred to above the inference is inevitable that the requirement in clause (1 of Regulation 5 that the Selection Committee shall meet at intervals not exceeding one year and prepare a list of members of the State Civil Service who are suitable for promotion in the Service was intended to be mandatory in nature because the eligibility of the persons to be considered both in the matter of length of service and age under clauses (2 and (3 is with reference to the first date of January of the year in which the Selection Committee meets and the number of members of the State Civil Service to be considered for selection is also linked with the number of substantive vacancies anticipated in the course of the period of twelve months commencing from the date of preparation of the list. We are, therefore, of the view that the requirement prescribed in sub-regulation (1 of Regulation 5 regarding the Committee meeting at intervals not exceeding one year and preparing a list of such members of the State Civil Service who are suitable for promotion to the Service was a mandatory requirement which had to be followed. The earlier decisions of this court also lend support to this view.

11. It must, therefore, be held that in view of the provisions contained in Regulation 5, unless there is a good reason for not doing so, the Selection Committee is required to meet every year for the purpose of making the selection from amongst the State Civil Service officers who fulfil the conditions regarding eligibility on the first day of January of the year in which the Committee meets and fall within the zone of consideration as prescribed in clause (2 of Regulation 5. The failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. If for any reason the Selection Committee is not able to meet during a particular year, the Committee when it meets next, should, while making the selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the State Civil Service officers who were eligible and fell within the zone of consideration for selection in that year.”

6. Recently, their Lordships of the Hon'ble Supreme Court in Union of India v. Hemraj Singh Chauhan, (2010) 4 SCC 290 have held that Government in a welfare State like India is supposed to act as a model employer. Right of an eligible employee to be considered for promotion is virtually a part of his fundamental right under Article 16 of the Constitution of India. Their Lordships have further held that legitimate expectation for being considered for promotion was defeated due to inaction on the part of State Government in conducting cadre review in time despite reminders from Central Government. Their Lordships have held as under:

“35. The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a welfare State.

36. 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.

40. This Court is not very much impressed with the aforesaid contention. The word “ordinarily” must be given its ordinary meaning. While construing the word the Court must not be oblivious of the context in which it has been used. In the case in hand the word “ordinarily” has been used in the context of promotional opportunities of the officers concerned. In such a situation the word “ordinarily” has to be construed in order to fulfil the statutory intent for which it has been used.

41. The word “ordinarily”, of course, means that it does not promote a cast-iron rule, it is flexible (see Jasbhai Motibhai Desai v. Roshan Kumar (1976) 1 SCC 671 at SCC p. 682, para 35). It excludes something which is extraordinary or special (Eicher Tractors Ltd., Haryana v. Commissioner Of Customs, Mumbai. (2001) 1 SCC 315 at SCC p. 319, para 6). The word “ordinarily” would convey the idea of something which is done “normally” (Krishan Gopal v. Prakashchandra (1974) 1 SCC 128 at SCC p. 134, para 12) and “generally” subject to special provision (Mohan Baitha v. State of Bihar (2001) 4 SCC 350: 2001 SCC (Cri) 710 at SCC p. 354).”

7. In the instant case also, inaction on the part of the State Government of not completing formalities has deprived the petitioner his legitimate expectation of being considered for the post of Principal by way of promotion.

8. In a recent judgment in Major General H.M Singh, VSM v. Union of India, (2014) 3 SCC 670, the question which had arisen before their Lordships of the Hon'ble Supreme Court was that whether non-consideration of claim of appellant would be discriminatory violating of Articles 14 and 16 of the Constituion of India. Their Lordships have answered the query in affirmative while taking into consideration the facts and circumstances of the case. Their Lordships have further held that the appellant could not be denied the promotion since the appellant had 14 months of army service remaining at the time when the vacancy in the rank of Lt. General arose on 1.1.2007 Their Lordships have held as under:

“27. It is not a matter of dispute, that the appellant was promoted to the rank of substantive Major General with effect from 7.1.2004 It is also not a matter of dispute, that the substantive vacancy in the rank of Lieutenant General, against which the appellant was eligible for consideration, became available with effect from 1.1.2007 Even though the appellant had nearly 14 months of military service remaining at the aforesaid juncture, the procedure contemplated for making promotions to the rank of the Lieutenant General was initiated for the first time just two days before the date of retirement of the appellant, on 27.2.2008 Although it is the contention of the learned senior counsel for the respondents, that the delay in convening the Selection Board and conducting its proceedings was not deliberate or malafide, yet there can be no doubt about the fact, that the appellant was not responsible for such delay. For all intents and purposes, he was repeatedly seeking consideration orally as well as in writing. He had been repeatedly informing the authorities about the approaching date of his retirement. In response, he was always assured, that if found suitable, he would be actually promoted prior to the date of his retirement. It was for the respondents to convene the meeting of the Selection Board. Since the Selection Board came to be convened for the vacancy which had arisen on 1.1.2007 only on 27.2.2008, the respondents must squarely shoulder the blame and responsibility of the above delay.

28. The question that arises for consideration is, whether the non-consideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India. The answer to the aforesaid query would be in the affirmative, subject to the condition, that the respondents were desirous of filling the vacancy of Lieutenant General, when it became available on 1.1.2007 The factual position depicted in the counter affidavit reveals, that the respondents indeed were desirous of filling up the said vacancy. In the above view of the matter, if the appellant was the senior most serving Major General eligible for consideration (which he undoubtedly was), he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India. We are of the view, that it was in order to extend the benefit of the fundamental right enshrined under Article 14 of the Constitution of India, that he was allowed extension in service on two occasions, firstly by the Presidential order dated 29.2.2008, and thereafter, by a further Presidential order dated 30.5.2008 The above orders clearly depict, that the aforesaid extension in service was granted to the appellant for a period of three months (and for a further period of one month), or till the approval of the ACC, whichever is earlier. By the aforesaid orders, the respondents desired to treat the appellant justly, so as to enable him to acquire the honour of promotion to the rank of Lieutenant General, (in case the recommendation made in his favour by the Selection Board was approved by the Appointments Committee of the Cabinet), stands affirmed. The action of the authorities in depriving the appellant due consideration for promotion to the rank of the Lieutenant General, would have resulted in violation of his fundamental right under Article 14 of the Constitution of India. Such an action at the hands of the respondents would unquestionably have been arbitrary.

31. While dealing with the issue of consideration of the appellant's claim for onward promotion to the rank of Lieutenant General, it is necessary for us to also conclude by observing, that had the claim of the appellant not been duly considered against the vacancy for the post of Lieutenant General, which became available with effect from 1.1.2007, we would have had to hold, that the action was discriminatory. This because, of denial of due consideration to the appellant, who was the senior most eligible serving Major General, as against the claim of others who were junior to him. And specially when, the respondents desired to fill up the said vacancy, and also because, the vacancy had arisen when the appellant still had 14 months of remaining Army service. urely it cannot be over looked, that the Selection Board had singularly recommended the name of the appellant for promotion, out of a panel of four names. In such an eventuality, we would have no other alternative but to strike down the action of the authorities as being discriminatory and violative of Article 16 of the Constitution of India.

32. The deliberations recorded by us hereinabove are incomplete, inasmuch as, we have not answered the pointed objection raised by the learned senior counsel for the respondent nos. 1 and 2, namely, that an officer is not entitled to promotion during the period of extension in service. For the instant objection raised at the hands of the respondents, it is necessary to refer to the deliberations of the Appointments Committee of the Cabinet, and specially paragraphs 8 and 9 thereof. A collective reading of the paragraphs 8 and 9 reveals an extremely relevant objective, namely, situations wherein an officer attains the age of retirement without there being a vacancy for his consideration to a higher rank, even though he is eligible for the same. Such an officer who is granted extension in service, cannot claim consideration for promotion, against a vacancy which has become available during the period of his extension in service. The above conclusion drawn by us is clearly apparent from the paragraph 9 of the proceedings of the Appointments Committee of the Cabinet. In fact in the operative part of the proceedings recorded in paragraph 11, it has been noticed, that.”…extensions motivated by a promotion in the offing during the extension period cannot be allowed…” We can derive only one meaning from the above observations, namely, extension being granted for promotion against a vacancy in the offing. That is to say, retention in service, so as to consider an officer for a vacancy which has not become available prior to his retirement, but is in the offing. The above reason recorded in the operative part of the proceedings of the Appointments Committee of the Cabinet, is laudible and legal.

34. In view of the fact, that we have found the order of rejection of the appellant's claim for promotion to the rank of Lieutenant General, on the ground that he was on extended service to be invalid, we hereby set aside the operative part of the order of the Appointments Committee of the Cabinet. It is also apparent, that the Selection Board had recommended the promotion of the appellant on the basis of his record of service, past performance, qualities of leadership, as well as, vision, out of a panel of four names. In its deliberations the Appointments Committee of the Cabinet, did not record any reason to negate the aforesaid interference, relating to the merit and suitability of the appellant. We are therefore of the view, that the appellant deserves promotion to the rank of Lieutenant General, from the date due to him. Ordered accordingly. On account of his promotion to the post of Lieutenant General, the appellant would also be entitled to continuation in service till the age of retirement on superannuation stipulated for Lieutenant Generals, i.e, till his having attained the age of 60 years. As such, the appellant shall be deemed to have been in service against the rank of Lieutenant General till 28.2.2009 Needless to mention, that the appellant would be entitled to all monetary benefits which would have been due to him, on account of his promotion to the rank of Lieutenant General till his retirement on superannuation, as also, to revised retiral benefits which would have accrued to him on account of such promotion. The above monetary benefits shall be released to the appellant within three months from the date a certified copy of this order becomes available with the respondents.”

9. In the present case also, the vacancies were available and in fact case of the petitioner was also considered by a duly constituted Departmental Promotion Committee, but despite that he was not promoted before his retirement.

10. Accordingly, in view of the analysis and discussion made hereinabove, the petition is allowed. Since the petitioner has already been considered by a duly constituted Departmental Promotion Committee convened in the month of March, 2003 or January, 2004, he shall be deemed to have been promoted to the post of Principal with all the consequential benefits from due date. The arrears of salary are also ordered to be paid to the petitioner. Petitioner's pension shall also be paid after treating the petitioner to be promoted as Principal. Needful be done within a period of ten weeks from today. Pending application(s), if any also stands disposed of. There shall, however, be no order as to costs.