Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(HP) 752

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
AJAY MOHAN GOEL, J.
Ujager Singh – Petitioner
Versus
State of Himachal Pradesh and Others – Respondents
C.W.P. No. 2070 of 2020
Decided On : 06-12-2022

Advocates:
Advocate Appeared:
For the Petitioner: Ramakant Sharma.
For the Respondents: Sumesh Raj, Dinesh Thakur, Amit Kumar Dhumal.

Point of Law : It was not much in dispute that when DPC was held for promotions to the post of Pump Operators, the petitioner was not promoted to the said post purportedly for want of experience certificate.

Headnote:
Employment and Seervice matter - Post of Pump Operator - Promotion - Petitioner is aggrieved by factum of his being denied promotion to post of Pump Operator, whereas according to him, persons junior to him from feeder category, stood promoted against said post prior to him - Response filed by Department to petition demonstrates that petitioner was not considered by Departmental Promotion Committee held in year as well as in year for want of submission of Experience Certificate by petitioner - Court is of considered view that onus to submit Experience Certificate cannot be shifted upon the incumbent who is in zone of consideration in departmental promotion and that too, for promotion from post of class-IV to class-III post- Data should be available with Department itself and same should be placed before Departmental Promotion Committee for its perusal for ascertaining as to whether incumbent in zone of consideration is fulfilling eligibility criteria for promotion or not - It is more so necessary keeping in view fact that post of Pump Operator is a non-selection post - Whether incumbent in zone of consideration is fulfilling eligibility criteria for promotion or not - Petitioner was appointed as helper in year on daily wage basis and his services are stated to be regularized as such in year - Otherwise also, it was not much in dispute that when DPC was held for promotions to post of Pump Operators, petitioner was not promoted to said post purportedly for want of experience certificate. Para 5
Finding of Court :
Court is of considered view that averments, as are contained in affidavit dated filed by Superintending Engineer, relevant portion whereof stands quoted hereinabove, clearly demonstrates that petitioner has been working as Helper in Pump House LWSS Jawalamukhi Town Well No. 3 and further he has been running motors under Jawalamukhi Sub Division and Division Dehra - Proves that petitioner was fulfilling condition of 5 years experience of working etc. both in year , which, renders non- consideration of petitioner, for want of experience certificate by DPC, to be bad in law - Writ petition is disposed of with direction that let a review DPC be held for year for promotion to post of Pump Operators and if necessary for year and case of petitioner be reconsidered for promotion against post of Pump Operator, on strength of experience, as has been spelled out in latest affidavit filed by authority concerned and petitioner be promoted, if found fit for promotion, in case, any person junior to him from feeder category, has been promoted against post of Pump Operator, then petitioner be also promoted with effect from same date, with all consequences, including seniority but with rider that monetary consequences shall be confined to three years as from date of filing of writ petition or date of promotion, whichever is later - Needful shall be done within a period of eight weeks.
Result : writ petition stands disposed of

JUDGMENT :

AJAY MOHAN GOEL, J.

1. By way of this writ petition, the petitioner has prayed for the following substantive relief:

“1. That the Office Order dated 3.5.2019, at Annexure P-4, may kindly be quashed and set aside and the petitioner may kindly be held entitled for promotion to the post of Pump Operator w.e.f. the date persons junior to him have been promoted after convening the Review DPC, with all consequential service benefits.”

2. When this case was listed before the Court on 23.02.2022, the following order was passed:

“CMP No. 15642 of 2021

For the reasons stated therein, the application is allowed and the petition is taken up for consideration, as prayed, for today itself.

CWP No. 2070 of 2020

Heard for some time. The petitioner is aggrieved by the factum of his being denied promotion to the post of Pump Operator, whereas according to him, persons junior to him from the feeder category, stood promoted against the said post prior to him. Response filed by the Department to the petition demonstrates that the petitioner was not considered by the Departmental Promotion Committee held in the year 2012 as well as in the year 2017 for want of submission of Experience Certificate by the petitioner. This Court is of the considered view that onus to submit Experience Certificate cannot be shifted upon the incumbent who is in the zone of consideration in departmental promotion and that too, for promotion from the post of class-IV to class-III post. This data should be available with the Department itself and same should be placed before the Departmental Promotion Committee for its perusal for ascertaining as to whether the incumbent in the zone of consideration is fulfilling the eligibility criteria for the promotion or not. It is more so necessary keeping in view the fact that the post of Pump Operator is a non-selection post. In these circumstances, before the matter is heard further, learned Additional Advocate General is directed to file an affidavit of the Superintending Engineer concerned, vide which the details of the service particulars of the petitioner be submitted, meaning thereby as to when he joined the service and subsequently when was he placed as a work charge employee/male regular employee. It should also be spelt out in the affidavit as to whether the petitioner worked with the pump motors and electrical accessories and if so, then for what period.

Let, needful be done within a period of four weeks as prayed for. List on 31.3.2022.”

3. In response thereto, an affidavit has been filed by the Superintending Engineer, Jal Shakti Vibhag, Circle Dharamshala, District Kangra, H.P. relevant portion whereof reads as under:

“2. That it is submitted that the petitioner was engaged on daily waged basis as Helper w.e.f. 1.5.1988 under JSV Sub-Division, Dehra now JS Sub-Division, Jawalamukhi under JSV Division, Dehra. He has been regularized on w.e.f. 1.4.1998 vide Executive Engineer, JSV Division, Dehra vide office order dated 23.7.1999. The petitioner has been working as a Helper in Pump House of LWSS Jawalamukhi Town Well No. 3 w.e.f. 1.4.1998.

3. That JSV Division, Dehra remained under the control of various circles i.e. JSV Circle, Nurpur and Hamirpur. Presently JSV Division Dehra is under the jurisdiction of JSV Circle, Dharamshala. Each circle had promoted class IV workers to the post of Class-III vide DPCs held from time to time, but each and every time, but the petitioner was not considered for promotion to class-III category for want of experience certificate.

4. That it is further submitted that during 9/2012 helpers/beldars were promoted to the post of Pump Operators by the Superintending Engineer, IPH circle, Hamirpur, but no juniors to the applicant had been promoted as Pump Operators.

5. That as per experience certificate issued by the Assistant Engineer, Jal Shakti Sub-Division Jawalamukhi (copy enclosed as Annexure R-II) the petitioner had been working as Helper under Pump House of LWSS Jawalamukhi Town Well No. 3 a

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