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PETITIONER: STATE OF H.P. & ORS.

       Vs.

RESPONDENT: SURINDER KUMAR MOHINDRA & ORS.

DATE OF JUDGMENT:       07/11/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      PATTANAIK. J.      This Appeal  by Special  Leave is  directed against the Judgment of the Himachal Pradesh Administrative Tribunal. By the impugned  judgment the Tribunal called upon the State to consider promotion of respondent no. l to the post of Joint Director alongwith  others as  on 15.6.1979  and if is found suitable to  give notional  promotion  to  him  by  creating supernumerary post  with all  consequential benefits without reverting the persons already promoted.      Admittedly,  respondent   no.   1   was   employed   as Agricultural Inspector on 19.5.1349 and he was promoted to a post in Class II on probation on 13.9.1957. He was confirmed against the said post on 15.6.1966 and was promoted to Class I post  on 22.1.1976. He had filed a representation claiming his  seniority   taking  his  length  of  service  from  the continuous date  of his  appointment and that representation having been  allowed on  30.11.1973 his  seniority  was  re- fixed. Consequent upon re-fixation of his seniority by order dated 4.9.76  he was  granted notional promotion to Class II with effect  from 13.9.57  with all  consequential benefits. The Departmental  Promotion Committee  by its  report  dated 21.4.79  recommended  the  case  of  respondent  no.  1  for promotion  to   Class  1   with  retrospective  effect  from 17.12.1973 on  the basis  of his  seniority below  Shri S.S. Saini and  above Shri V.P. Sobti. The Departmental Promotion Committee met  on 15.6.79  to consider the case of promotion to the  post of  joint Director (Agriculture) but respondent no. 1’s  case was  not considered  as in accordance with the rules and  on the  basis of  his seniority  he did  not come within the  zone  of  consideration.  Challenging  the  said action respondent  no. 1  filed a  Writ Petition in the High Court claiming the seniority above Shri S.S. Saini. Prior to the aforesaid  filing of  the Writ  Petition by  order dated 29.1.1990, the  State Government  had fixed the seniority of respondent no.  1 below  Shri Charanjit  Singh and above Dr. L.D. Sharma  after due  consultation with  the State  Public Service Commission.  Shri V.P.  Sobti, who had been directly recruited to  Class I  in the year 1962 could not be held to be junior  to respondent  no. 1,  even on  the basis  of re-

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considered seniority  of  respondent  no.  1.  Against  this decision of  the State Government respondent no. 1 had filed a representation  to the  State Government.  The  Government revised its  earlier decision by order dated a .80 proposing to fix  up the seniority of respondent no. 1 below Shri I.S. Kingra  and  above  Dr.  Charanjit  Singh.  Accordingly  the respondent no.  1 amended  the Writ  Petition earlier filed. The State  Government filed  its  counter-affidavit  stating therein that  in view  of  the  re-determined  seniority  of respondent  no.   1  there   has  been   a   direction   for reconsideration of  his promotion  with effect from the date when his  juniors were  promoted and  pursuant to  the  said direction  respondent   no.  1   was  granted  retrospective promotion to  Class II with effect from 13.9.57 and to Class I with effect from 17.12.1973. The gradation list of Class I officers  other  than  Joint  Director  of  Agriculture  was finalised on  6.12.1980 wherein  respondent no.  1 was shown above Dr. Charanjit Singh and below Shri I.S. Kingra. During the pendency  of the  Writ Petition  Administrative Tribunal having been  constituted, the  matter was transferred to the State Administrative  Tribunal, Himachal  Pradesh. The State Tribunal  by  the  impugned  judgment  dated  6.8.93  having directed the  appellant to  reconsider the case of promotion of the  respondent no.  1  with  retrospective  effect,  the present appeal has been preferred.      The stand  of the  appellant in  this appeal is that in accordance  with   the  prevalent   rules  and  taking  into consideration the  revised seniority of respondent no. 1 his case for  promotion has been considered when it fell due and as such  the impugned  direction is unsustainable in law. In this appeal  respondent no.  1 alone  contested and  in  the reply affidavit  it has  been urged that gross injustice was been meted  out to  the respondent  by the State Government, his  case  for  promotion  not  having  been  considered  at appropriate time  and he  not  having  been  given  his  due seniority. It  has been  further stated that Tribunal having done justice  by directing the State to re-consider the case of promotion  of respondent no. 1 it would not be proper for this Court  to interfere with the said direction in exercise of powers under Article 136 of the Constitution. It has also been averred  in the  reply affidavit  that respondent no. 1 having been  duly appointed  to the  cadre on  19.5.1949 and other respondents though appointed on different dates to the post outside  the cadre  in 1949  but were  regularised only during 1950.  All of them should have been treated junior to respondent no.  1 but  unfortunately  the  State  Government treated them  senior to  respondent no.  1 which  ultimately resulted  gross   injustice  throughout   his   career   and promotional avenues  were denied to him when it fell due. In this view  of the  matter the  Tribunal has rightly directed for re-consideration. of the question of promotion.      In view  of the  rival stand  of the  parties the  only question  that   arises  for  consideration  is  whether  in accordance with  the relevant rules in force the question of promotion of  respondent no.  1 has  been considered  by the competent authority  or there  has been  any infringement of the said  right  of  respondent  no.1.  It  is  the  settled position that  under  the  scheme  of  the  Constitution  an employee has  a right  of consideration  and not  a right of promotion unless  the rules  of promotion  indicate that the promotion is  on the basis of seniority alone. While hearing this case on 2.9.96 this Court had called upon the appellant to file  an affidavit  duly sworn  to by a competent officer indicating the  date on which the claim for promotion to the post of Joint Director of the respondent no.1 was considered

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and the  criteria prescribed  for consideration of promotion as well  as the  number of  posts available  in the promoted cadre  and   the  principles  adopted  by  the  Departmental Promotion Committee  for considering the cases of promotion. The Court  also called  upon the  appellant to  produce  the relevant records.  Pursuant to  the aforesaid  direction  an affidavit has  been filed  and the  relevant records  of the Departmental Promotion Committee have also been produced. It appears from  the proceedings  of the Departmental Promotion Committee as well as other material/documents on record that the question  of promotion to the post of Joint Director was considered on  three occasions,  namely, on 12.8.77, 15.6.79 and 26.8.81.  The criteria  for promotion was merit with due regard to  seniority. The  Departmental Promotion  Committee was required  to prepare  a Select  List and  the number  of persons to  be considered  should extend  to five  times the number of  vacancies expected  within a  year. Further after elimination of  the persons  unfit for promotion the persons should be  classified  as  "Outstanding",  "Very  Good"  and "Good" and  the basis  for such  classification would  be on annual confidential  reports of  the employees  for 3  to  5 years .  In the  meeting held on 12.8.77 and on the basis of the respective  seniority as well as the criteria cf 3 years regular service  in the  feeder grade  only 13 officers were found eligible for being considered as against the two posts of Joint  Director. Respondent  no.1 did not come within the zone of consideration and therefore, is not entitled to make a grievance  that his  case was  not considered. In the next Departmental Promotion  Committee meeting held on 15th June. 1979 respondent  no.1  was  no  doubt  within  the  zone  of consideration  and   his  case   was   considered   by   the Departmental  Promotion   Committee  but   in  view  of  the requirement of  3 years’  service in  the feeder  grade  and respondent no.1  not having  satisfied  the  said  criteria, ultimately he  was not  promoted. When  the next meetings of the Departmental  Promotion Committee  was held on 26.8.1981 respondent ns  as no longer available to be considered as he had superannuated  on 30.11.1980. In this view of the matter we have  no hesitation  to come  to the  conclusion that the Tribunal wholly  erred in  directing re-consideration on the question of  promotion of  respondent no.  1. In view of our conclusion that respondent no. 1’s case for promotion to the post of  Joint Director  Agriculture has  been considered in accordance with  the rules and the criteria for promotion as well as in accordance with his seniority in the feeder grade and he  has not been selected either because he did not come within the  zone of  consideration or  because  he  did  not fulfil the  criteria of  3 years’  continuous service in the feeder  grade,   there  has  been  no  infringement  of  the constitutional right  guaranteed under  Article  16  of  the Constitution.      We accordingly  set aside the impugned direction of the Tribunal and  allow this  appeal. TA  No. 333 of 1986 stands dismissed but in the circumstances there will be no order as to costs.