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HIGH COURT OF HIMACHAL PRADESH
OM PRABHA NEGI(Not Applicable) – Appellant
Versus
HPPSC AND OTHERS(Not Applicable) – Respondent
CWP 4052/2019
['Sunil Mohan Goel', '', 'Raman Jamalta', 'Manish Sharma', '', 'AG', 'Vikrant Thakur', 'Deven Khanna', 'Deshinder Khanna']
Promotion in government services can proceed without reserved category candidates if not available, adhering to the principles of eligibility and catch-up rule as per established legal precedents.
Headnote:(A) Constitution of India - Articles 15(4), 16 and 335 - Promotion and seniority - Challenge to promotions of certain employees on grounds of reservation policy and illegal promotion against reserved categories - Petition dismissed for lack of merit; application of catch-up rule discussed; promotions made in accordance with government instructions and Supreme Court judgments including R.K. Sabharwal v. State of Punjab (1995) 2 SCC 745 - Principle of reservation in promotions deemed applicable without consequential seniority - Consideration of eligibility and recognition of unreserved and reserved categories in cadastro recognized. (Paras 2-54)
Facts of the case:
Petitioner, employed as Section Officer in the H.P. Public Service Commission, challenged the seniority list that placed certain employees senior to her. She claimed that promotions made to General Category candidates against reserved posts were illegal and thus, they should not benefit from the catch-up rule as her promotion was prior.
Findings of Court:
The court found that promotions challenged adhered to established government guidelines and Supreme Court decisions, noting that reserved posts could be filled by merit from unreserved categories when no eligible candidates from reserved categories were available.
Issues: The issues centered around the legality of promotions against reserved posts and the applicability of the catch-up principle.
Ratio Decidendi: The court leaned on the principles laid out in prior judgments regarding eligibility for promotions and the enforced guidelines pertaining to reservation, establishing that promotions did not violate existing laws or instructions and that due process was followed.
Result: Petition dismissed.
JUDGMENT
Petitioner, serving as Section Officer in office of respondent No.1 H.P. Public Service Commission (hereinafter to be referred as Commission), has filed the instant petition for quashing Office Memorandum dated 24.9.2019 whereby Tentative Seniority List of Section Officers, as it stood on 1.9.2019, depicting private respondents No. 5 to 7 senior to petitioner has been circulated, and also for quashing of proceedings of Department Promotion Committee (DPC) dated 1.1.2010 (Annexure P-6), 16.11.2011 (Annexure P-8), 10.5.2012 (Annexure P-9), 28.7.2014 (Annexure P-10) recommending promotion of respondents No. 4 to 7 from the post of Senior Assistant to Superintendent Grade-II, DPC proceedings dated 31.3.2015 (Annexure P-7) recommending promotion of respondent No.4 and another from the post of Superintendent Grade II to the post of Section Officer and also DPC proceedings dated 13.2.2007 (Annexure P-11) recommending promotion of respondent No.8 Soma Devi as Senior Assistant against the post meant for Secheduled Caste category.
2 Ground for aforesaid challenge is that in view of pronouncement of the Supreme Court in R.K. Sabharwal vs.State of Punjab and others, reported in (1995(2) SCC 745, as well as instructions dated 20.8.1998 and 19.2.2000 issued by Government of Himachal Pradesh dealing with Reservation Roster to the appointment and promotion, various posts of Senior Assistant, Superintendent Grade-II and Section Officers allotted to the reserved category could not have been filled by promoting the candidates from unreserved category but were to be kept vacant till availability of suitable candidate of concerned reserved category and thus, promotion of private respondents belonging to General Category against respective reserved posts is illegal and invalid and, therefore, despite being senior to petitioner in the entry grade, private respondents are not entitled for benefit of principle of catch-up Rule propounded by the Supreme Court in Union of India and others vs. Virpal Singh Chauhan reported in (1995)6 SCC 684 and Ajit Singh & others (II) vs. State of Punjab and others reported in (1999)7 SCC 209 and, accordingly, petitioner being appointed as Section Officer on 25.2.2016, prior in time to promotion of respondents No. 4 to 7 to the post of Section Officer, is to be placed senior to them and has to be considered for further promotion to the post of Under Secretary prior to them. Further that on same analogy, respondent No. 8 Soma Sharma, who was promoted as Superintendent Grade II on 1.4.2015 after the date of promotion of petitioner to the said post i.e. Superintendent Grade II on 31.10.2013, is also to be placed below the petitioner in seniority list of Superintendent Grade-II being not entitled for benefit of Principle of catch up Rule.
3 According to petitioner, benefit of principle of catch-up Rule is available only to those employees who are senior in the feeder category to employee promoted by way of accelerated promotion, however, have been promoted against the post available for unreserved category but not on promotion against the post allotted to reserved category. Referring impugned DPC proceedings, Annexure P-6 to Annexure P-11, learned counsel for petitioner has pointed out the recommendation of DPC with respect to employees belonging to unreserved category against the post meant for SC and ST categories and has contended that instead of doing so, the posts meant for SC & ST categories were to be kept vacant and, in such eventuality, private respondents could not have been promoted against such post(s) and, therefore, their promotions in pursuant to impugned DPC proceedings deserve to be ignored for considering the petitioner above them in seniority list and consequently also for further promotion in terms of pronouncement of the Supreme Court and instructions issued by State Government, referred supra.
4 It has been argued on behalf of petitioner that post meant for reserved category cannot be filled by a
