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2017 Supreme(HP) 688
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sanjay Karol, Sandeep Sharma, JJ.
Er. G.S. Guleria, Superintendent Engineer - Appellant
Versus
State of H.P. and Ors. - Respondents
LPA No. 104 of 2010
Decided On : 02-08-2017
For the Appellant :Ms. Rashmi Parmar, Advocate.
For the Respondents:Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals and Mr. J.K. Verma, Deputy Advocate General.
Ad-hoc service should not be considered for promotion to a selection post based on merit cum seniority, and promotions must follow due procedure.
Headnote:
Seniority - Promotion Dispute - Instructions dated 16.3.1981 and 17.11.1981 - ACRs - Ad-hoc Service - Merit cum Seniority - Regular Promotion - Administrative Order - Selection Post - [Executive Engineer] - [Instructions dated 16.3.1981, 17.11.1981] - [The judgment discusses the dispute regarding the promotion of the petitioner to the post of Executive Engineer and Superintending Engineer. It highlights the criteria for promotion, consideration of ACRs, and the relevance of ad-hoc service. The court emphasizes the importance of merit cum seniority for promotion and the distinction between ad-hoc and regular promotion. The judgment also refers to relevant instructions and a Supreme Court case to support its decision.]
Fact of the Case:
The petitioner, an Assistant Engineer, challenged the promotion of private respondents to the posts of Executive Engineer and Superintending Engineer ahead of him, claiming that his ad-hoc service and ACRs were not considered for promotion.
Finding of the Court:
The court found that the petitioner's low merit led to his non-promotion and that the ad-hoc promotion was made through an administrative order, not following due procedure. It upheld the decision that the petitioner's ad-hoc service should not be considered for promotion, as the criteria for selection to the post of Executive Engineer is merit cum seniority.
Issues: Dispute over promotion based on ad-hoc service and ACRs, consideration of merit cum seniority for promotion, and the validity of administrative ad-hoc promotion.
Ratio Decidendi: The court held that ad-hoc service should not be considered for promotion to a selection post based on merit cum seniority, and that the petitioner's low merit justified his non-promotion. It emphasized the importance of following due procedure for promotions.
Final Decision: The appeal was dismissed, upholding the decision that the petitioner's ad-hoc service should not be considered for promotion, and the promotion of private respondents based on merit was valid.
Sandeep Sharma, J.
By way of instant letters patent appeal, a challenge has been laid to judgment dated 14.6.2010, rendered by the learned Single Judge, in CWP (T) No. 11807 of 2008, titled G.S. Guleria v. State of H.P. and Ors., whereby petition having been filed by the petitioner-appellant herein came be dismissed.
2. In nutshell, case of the appellant-petitioner is that while working as Assistant Engineer, he was senior to private respondents but they were wrongly promoted on regular basis as Executive Engineer and Superintending Engineer that too ahead of him. Petitioner-appellant further claimed before the Court below that his ACRs qua the period, he worked as ad-hoc Executive Engineer were required to be taken into consideration by the review DPC while considering his case for promotion to the post of Executive Engineer against the regular vacancy and as such, department has erred in not taking into account his ad-hoc service as Executive Engineer for the purpose of promotion and seniority to the regular post of Executive Engineer and thereafter to the post of Superintending Engineer.
3. On the other hand, respondent department contended before the learned Single Judge that the petitioner was promoted on ad-hoc basis on the post of Executive Engineer during 1989, purely on temporary basis. The post of Executive Engineer is a selection post, where criterion for promotion is merit cum seniority. Petitioner was considered for the promotion to the regular post of Executive Engineer from the year, 1988 to 1993 year-wise but because of his low merit, he could not be promoted, as a result of which, private respondents, who were better in merit came to be promoted ahead of the petitioner. DPC considered the ACRs of relevant period of the petitioner as well as other persons, entitled to be promoted to the post of Executive Engineer. Respondents specifically stated that instructions dated 16.3.1981 were superseded by instructions dated 17.11.1981 and as such, there was no requirement for department to consider the ACRs of the petitioner for the period when he worked as Executive Engineer on ad-hoc basis.
4. Record reveals that the petitioner could not be promoted on account of his low merit in comparison to the private respondents and there is nothing on record from where, it could be inferred that the stand of the respondent-State was ever refuted by the petitioner by way of filing rejoinder, if any. It also emerge from the record that case of the petitioner was duly considered by the review DPC but he could not be promoted because of his low merit as compared to other persons.
5. This Court after having carefully perused judgment passed by the learned Single Judge sees no illegality and infirmity in the findings returned by the learned Single Judge that the petitioner could not have been given benefit of ad-hoc service as Executive Engineer, especially when his appointment as Executive engineer was purely stop-gap arrangement. It also emerge from the record that the petitioner was appointed as Executive Engineer on ad-hoc basis without following due procedure, rather his promotion to the post of Executive Engineer on ad-hoc basis was made by way of administrative order that too in terms of order passed by the learned H.P. State Administrative Tribunal in TA No. 240/86. Since instructions dated 16.3.1981 were superseded by instructions dated 17.11.1981, review DPC rightly did not consider the ACRs, if any, of the petitioner qua the period when he was officiating as Executive Engineer on ad-hoc basis.
6. It is also evident from the record that evaluation of ACRs done by the DPC is as per relevant instructions/procedure and moreover, at no point of time, petitioner objected to evaluation of his ACRs, especially in comparison to the private respondents for the relevant years. Reliance is placed on judgment passed by the Hon’ble Apex Court in case titled R.P. Bhardwaj v. Union of India and Ors., 2005 (10) SCC 244, relevant para w
