Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(HP) 310

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
SANDEEP SHARMA, J.
Vinyak Kashyap & Others - Petitioners
Versus
The State of H.P. & Anr. - Respondents
CWP No. 5122 of 2020
Decided On : 18-05-2023

Advocates Appeared:
For the Petitioners: Mr. Suneel Awasthi.
For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma with Mr. Rahul Thakur, Mr. Ravi Chauhan and Ms. Avni Kochhar Mehta, Mr. Vikrant Thakur.

Point of Law: A mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when vacancies in promotional post is specifically prescribed under rules, which also mandate clearance through a selection process.

Headnote:
Selection process - Promotion for post - Writ in nature of mandamus may kindly be issued directing respondents to consider case of petitioners for promotion for post of Assistant Engineer (Design) alongwith all consequential benefits, when deemed vacancies arises - Petitioner remained mute spectator for almost four years that too without there being any plausible justification – Para 15.
Finding of the Court: Recommendation of Departmental Promotion Committee to promote petitioner without any demur accepted promotion from date given in promotion order – Suddenly few days prior to filing of petition at hand petitioner filed representation to department claiming therein promotion - Since petitioner himself was not vigilant or cautious about his right, court cannot come to his rescue at this stage, especially when there is no material suggestive of fact that meeting of Departmental Promotion Committee was purposely not convened to defeat claim of petitioner - Most importantly, it has been categorically ruled in judgment that due to administrative reasons D.P.C cannot be held in a year, then person cannot claim retrospective promotion in absence of malafides since malafied taints every act requiring a person wronged to be placed in position but for malafides or tainted exercise of power - Petitioner remained mute spectator for almost four years that too without there being any plausible justification - Petitioner remained mute spectator for almost four years that too without there being any plausible justification - Court finds no merit in petition.
Result: Petition dismissed.

JUDGMENT :

(Sandeep Sharma, J.) :

1. Petitioners herein, who were appointed as Design Engineers in the Department of HPPWD in the year 2007 by way of direct recruitment were eligible to be promoted to the post of Assistant Engineer Design as per Recruitment and Promotion Rules. Since 35 posts of Assistant Engineer Design were lying vacant for so many years and no steps were taken by the respondents to fill up the vacancies, petitioners herein alongwith other similar situate persons were compelled to approach this Court by way of Civil Writ Petition No.9636 of 2014, seeking therein direction to the respondents to convene the meeting of Departmental Promotion Committee. Aforesaid Civil Writ Petition was disposed of vide order dated 22.12.2014 (Annexure P-4) passed by Division Bench of this Court, whereby direction was issued to respondent No.2 to constitute Departmental Promotion Committee in order to consider the cases of all the eligible persons on merit, as per the rules occupying the field.

2. Since, no steps were being taken by the department to convene the Departmental Promotion Committee despite there being aforesaid order passed by Division Bench of this Court, petitioners alongwith other similar situate persons were compelled to file Civil Original Petition Contempt No.889 of 2015, titled as Kailash Chand and others vs. Narinder Chauhan, however during pendency of aforesaid Civil Original Petition Contempt, respondents convened the meeting of Departmental Promotion Committee on 13th May, 2016 and on the basis of recommendation made by such Departmental Promotion Committee promotion, promotion orders of the petitioner as well as other similar situate persons were issued on 4th July 2016. On account of aforesaid compliance, Civil Original Petition Contempt No. 889 of 2015 was disposed of.

3. Now after four years of issuance of order of promotion, petitioners have approached this Court in the instant proceedings on the ground that they were to be given promotion retrospectively from the date vacancy of Assistant Engineer Design had become available in the department. As per the petitioners, 35 vacancies of Assistant Engineers (Design) had become available in the year 2010, but since no meeting of Departmental Promotion Committee was convened to fill up aforesaid vacancies by the department till passing of order dated 22.12.2014 by Division Bench of this Court in CWP No.9636 of 2014, great prejudice is caused to the petitioners and they are entitled to be granted promotion retrospectively w.e.f. year 2010. Petitioners herein though filed detailed representation, seeking therein relief, as have been claimed in the instant petition, to the competent authority (Annexure P- 6), but since no decision was taken upon the same, they were compelled to approach this Court in the instant proceedings, praying therein for following relief:-

“(i). That writ in the nature of mandamus may kindly be issued directing the respondents to consider the case of the petitioners for promotion for the post of Assistant Engineer (Design) w.e.f. August, 2010, alongwith all consequential benefits, when the deemed vacancies arises.”

4. Having heard learned counsel representing the parties and perused material available on record vis-à-vis relief prayed for in the instant petition, this Court finds that facts, as have been noticed hereinabove, are not in dispute. It is not in dispute that 35 vacancies of Assistant Engineer Design though had become available in the year 2010, but no Departmental Promotion Committee was convened to fill up those posts till the time direction was issued by the Division Bench of this Court vide order dated 22.12.2014, whereby direction was issued to the department to convene meeting of Departmental Promotion Committee. It is also not in dispute that pursuant to order dated 22.12.2014, meeting of Departmental Promotion Committee was convened and pursuant to its recommendation, petitioners herein alongwith other similar situate per