Jiya Lal Bhardwaj, Judge (Oral)

The petitioner, by way of present petition, has prayed for issuance of writ of mandamus directing respondents No.1 and 2 to promote him as Chief Engineer w.e.f. 18.09.2008 on adhoc basis, when the said post was vacated by Shri K.R. Singh and the name of petitioner was recommended to give him the charge of Chief Engineer, National Highway, HP PWD, Shimla, being the senior most officer and thereafter on regular basis w.e.f. 22.05.2009, when juniors to him, who have been arrayed as respondents No.3 to 5, were promoted, with all consequential benefits.

2. The petitioner was working as Superintending Engineer with the respondents-State and as per communication dated 06.05.2008 (Annexure P-2) issued by respondent No.1 to the Secretary (Personnel) to the Govt. of Himachal Pradesh, a proposal was mooted to give the petitioneras additional charge of Chief Engineer National Highway, HPPWD, Shimla being the senior most Superintending Engineer in addition to his duties. It was mentioned that no Court case/Vigilance case/enquiry was pending against the petitioner. However, vide Notification dated 18.09.2008 (Annexure P-3), Shri B.D. Joshi, Superintending Engineer, who was admittedly junior to the petitioner, was appointed as Chief Engineer, Project Director in H.P. Road Infrastructure Development Corporation, Shimla (for short the ‘HPRIDC’) in the pay-scale of Rs.18600-22100 with immediate effect in the public interest.

3. Thereafter, the Departmental Promotion Committee (for short ‘DPC’) for regular promotion to the post of Chief Engineer was held on 20.05.2009 and the petitioner being the senior most and eligible Superintending Engineerand in the zone of consideration was considered alongwithrespondents No.3 to 5 in the order of seniority of Superintending Engineers. Total nine Superintending Engineers in the zone of consideration were considered and the DPC, after evaluating the ACRs of the eligible Superintending Engineers for the last five years, made its independent assessment and the petitioner was assessed as ‘Good’ as per his ACRs and thus, his name was not recommended for promotion, as is evident from perusal of Annexure R-3. The petitioner was given the ACRs ‘Very Good’ for the year 2003-04, ‘Good’ for the year 2004-05, ‘Very Good’ for the year 2005-06, ‘Good’ for the year 2006-07, ‘Good’ for the year 2007-08 and thus the DPC had overall assessed him as ‘Good’ (page-174).

4. The claim of the petitioner in the writ petition is that the petitioner was never conveyed about his ACRs and his ACRs for the year 2004-05, 2006-07 and 2007-08 being Good has affected his chances of promotion. Since the petitioner was not communicated of his ACRs having Good, the same could not have been considered by the DPC and the petitioner being the senior most ought to have been promoted, ignoring the said ACRs.After the recommendations of the DPC, respondent No.1 had issued Notification dated 22.05.2009 (Annexure P-5), when juniors to the petitioner were promoted. The petitioner after coming to know about the said fact, made a representation to hold review DPC, however, the respondents did not convene the review DPC. It has been averred that though the petitioner was subsequently promoted to the post of Chief Engineer as per Notification dated 08.01.2010 (Annexure P-9), but since he was senior to respondents No.3 to 5, when the DPC was convened on 20.05.2009, the action on the part of the respondents is illegal, arbitrary as well as discriminatory. It has also been averred that as per judgment passed by the Hon’ble Supreme Court in Dev Dutt vs. Union of India and others (2008) 8 SCC 725, which judgment has later on been affirmed by the Hon’ble three-Judge Bench of the Hon’ble Supreme Court in Abhijit Ghosh Dastidar vs. Union of India and others 2009 (16) SCC 146, the promotion of respondents No.3 to 5 made to the posts of Chief Engineer be quashed and the petitioner may be promoted to the post of Chief Engineer from th