Chand Parkash vs State of H.P and Others

Dev Darshan Sud, J.—Petitioner is presently working as General Manager, District Industries Centre (D.I.C.), Bilaspur, H.P.

The case of the petitioner in a nut shell is that he had exercised his option to be considered for promotion to the Himachal Pradesh Administrative Service (HPAS for short) in the year 1996 and then again in the year 2002 but he was not considered/selected.

The petitioner challenged the action of the respondents by way of filing O.A. No. 2209 of 2005 titled Chand Parkash v. State of H.P. and Ors. Vide order dated 7.9.2005, the petition was disposed of by the Tribunal with a direction passed on the request made on behalf of the learned Counsel for the applicant that the Original Application shall be treated as a representation to the Chief Secretary, who shall consider and dispose it of within a period of six weeks from the date of the copy of the order was received. The order has been filed as Annexure:A-12. Pursuant to the judgment, it is undisputed before me that the petitioner represented to the Chief Secretary vide Annexure:A-11 detailing the circumstances under which he had preferred his option to be considered for the HPAS as that was one avenue of promotion available to him. In short, the petitioner set out in his representation that in 2003 and 2004, the Department of Industries and Personnel decided to consider General Manager of District Industries for promotion to HPAS and the names of all General Managers were forwarded to the H.P. Public Service Commission by the Department of Personnel. In these circumstances, he submits that he exercised his option of being considered to be promoted to the post of General Manager, DIC, on 31.8.2004 and he was as such promoted on 6.12.2004. This option according to him was exercised to keep the first option of being considered to HPAS alive as that was his only considered choice. The petitioner further pleaded that the Public Service Commission sent back the case to the Government with the observation that the feeder category could only be Manager, DIC and not General Manager. The petitioner then pleads that the Department of Personnel is considering officers of other Departments, namely, Co-operative Department, Labour & Employment Department etc. who were earlier promoted to a higher post to induct them into HAS, but they have been reverted back to the feeder category for consideration as such and the same set of rules/treatment should be given to the petitioner.

This representation has been rejected by the Chief Secretary. The reasoning given is that if an incumbent has two channels of promotion i.e. one for the HPAS and other in the department, he has to exercise such an option and because the petitioner had opted to be promoted in the Department of Industries itself, therefore, his case could not be considered and was accordingly rejected. What I observe from this order of rejection is that it does not address itself to the number of points which have been raised by the petitioner in his representation.

Reply of the State is also in line with the reasons which have been advanced for the rejection of the representation of the petitioner.

Learned Additional Advocate General submits that he exercised a fresh option in the year 2004 where the petitioner has specifically requested to be considered for promotion to the post of General Manager, he cannot turn around and exercise another option afresh.

Learned Counsel for the petitioner urges that the case of the petitioner has not been dealt with in accordance with the instructions issued by the Government from time to time. In particular, she refers to Clause 16.26 of the Handbook on Personnel Matters, Volume-I (Second Edition) which provides that various complications arise in cases where according to the Recruitment and Promotion Rules a particular post has more than one channel of promotion. To prevent this from occurring, options should invariably be obtained from the persons concerned and kept in the record before he is considered for promotion against one or the other channels provided in the rules. Although these instructions may not be strictly enforceable as law but none the less are indicative of the fact as to how the State has to deal with the case of the employees/incumbents exercising their options.

One other averment which has been made in the petition is that the employees of other departments have been allowed to exercise this option despite the fact that they have been promoted to a higher post. This is countered by the State by pleadings/alleging that in case of those employees, they had a lien on the lower post. The State also places reliance on Annexure:A-9 with the petition to urge that so far as the petitioner is concerned, he had no lien on the post of Manager. What I find from reading of Annexure:A-9 is that it confirms the probationary period of the petitioner on 24.11.1991 at which time he was no where near being considered for promotion as General Manager.

I cannot persuade myself to read/interpret this order as confirming the petitioner as a General Manager w.e.f. 24.11.1991. If that be so, it would lead to startling consequences.

What I need to add and emphasis is that an option itself has an element of free will and volition. The record was perused by this Court and on the last occasion and in 2004 when the petitioner is supposed to have changed his option for not being considered for the HPAS, I do not find any specific option has been called for except that there are communications exchanged between the Addl. Chief Secretary and the Secretary Industries calling upon department to re-structure the option(s). In any event, the petitioner could not be said to have exercised this option willingly.

Learned Counsel appearing for the petitioner submits that on instructions received, the option of 1996 and 2002 should be considered as valid having been given freely. She submits that in the D.P.C. for the HPAS to be held in 2010, the case of the petitioner be considered in accordance with the Recruitment and Promotion Rules.

I do not see any bar to the grant this relief to the petitioner. So far as the selection in the previous D.P.C. are concerned, I cannot, at this stage disturb those proceedings.

This writ petition is accordingly allowed. Annexure:A-14 is quashed and set aside amongst other grounds that it does not dispose of the representation of the petitioner on each of the grounds urged by him. A direction is issued that the petitioner shall be considered for the HPAS in the next D.P.C. in accordance with the Rules.

One other submission has been made by the learned Addl. Advocate General if that be so, his promotion to the post of General Manager (Industries) would require a review, I have not touched that aspect of the matter. If that is a natural consequence of accepting his option of 1996 and December, 2002, result would be obvious. The necessary consequences shall follow. It will be open to the State to reconsider such promotion in the department. The petition is disposed of. No order as to costs.