Point of Law: As per Rules, Lineman with ITI certificate having 7 years of regular service and non-ITI having 10 years regular service as Lineman was eligible to be considered for promotion to post of Foreman.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, petitioner has prayed for grant of following substantive reliefs:

“i) That the action of the respondents department is arbitrary, illegal, unreasonable, unconstitutional, discriminatory and violative of Articles 14, 16 and 21 of the Constitution of India.

ii) That the announcement made by the Hon’ble Chief Minister in terms of the cabinet decision/policy decision taken by the Government and same is required to be implemented from the date of such announcement i.e. 2.5.2016. Contrary to the same the respondents have carried out the amendment in the Recruitment and Promotion Rules for the post of Foreman, purposely after a lapse of more than one and half months denying the benefit of the announcement to the applicant and to favour their near and dear ones and made applicable with immediate effect, which is contrary to the above stated fact.

iii) That the right of consideration is a fundamental right of every employee. The action of the respondents w.r.t. not making applicable the amendment w.e.f. the announcement/policy decision taken by the Government would amount a violation of the abovementioned right.”

2. Brief facts necessary for adjudication of the petition are that the petitioner was appointed as T-Mate in the Himachal Pradesh State Electricity Board (for short, “the Board”) on work charge basis in the year 1977. He was regularized on the same post w.e.f. 7.10.1983. Petitioner was promoted as Lineman on 12.03.2007.

3. The next promotional post available from the feeder category of Lineman was that of Foreman. The petitioner attained the age of superannuation on 31.05.2016.

4. The Recruitment and Promotion Rules to the post of Foreman in the Board were notified in the year 1991. As per these Rules, the Lineman with ITI certificate having 7 years of regular service and non-ITI having 10 years regular service as Lineman was eligible to be considered for promotion to the post of Foreman. Till the date of retirement of petitioner, the aforesaid Rules remained in vogue. Since, petitioner had not completed requisite years of service as Lineman, he was not considered for promotion to the post of Foreman.

5. The 15th General Conference of Himachal Pradesh State Electricity Board Employees Union was convened at Sundernagar on 2.5.2016, in which Hon’ble the Chief Minister of the State made various announcements. One of such announcement was to reduce the promotion criteria for Lineman from 10 years regular service to 7 years regular service for non-ITI Lineman. The Board notified the amendment in the Recruitment and Promotion Rules to the post of Foreman vide notification dated 23.6.2016, whereby the criteria of regular service of 10 years earlier prescribed for non-ITI Lineman was reduced to 7 years of regular service.

6. The petitioner, by way of instant petition, seeks the retrospective benefit of amendment carried in the R & P Rules on 23.6.2016 and is claiming his promotion to the post of Foreman and consequential benefits by making prayers as noticed above.

7. The respondents have contested the claim of the petitioner on the ground that the benefit of amendment in R & P Rules cannot be granted retrospectively. Petitioner was governed by the service conditions as were applicable till the date of his retirement. It has also been submitted that the announcement made by Hon’ble the Chief Minister was subject to its feasibility. Accordingly, the matter was placed before the Chairman of the Board on 13.5.2016. The procedural formalities and necessary approvals took reasonable time and finally the notification was issued on 23.6.2016.

8. I have heard learned counsel for the parties and have also gone through the records of the case carefully.

9. The first question that arises for consideration is whether the petitioner had acquired any right to be promoted to the next higher post of Foreman?

10. The answer is in negative for the reason that mere existence of post or vacancy does not confer a