Dushyant Kumar vs State Of Himachal Pradesh And Another

Ajay Mohan Goel, J

The appellant/petitioner (hereinafter to be referred as ‘the petitioner’) joined the service of the respondent-Board as a Clerk on regular basis on 02.04.1976. He was promoted against the post of Section Officer on 06.10.2008. After passing the Departmental Examination, he was promoted as an Assistant Secretary w.e.f. 23.06.2011. Thereafter, the petitioner was promoted against the post of Deputy Secretary by respondent no. 1 vide notification dt. 04.02.2013, in the respondent-Board. He superannuated as such on 30.09.2014.

According to the petitioner, in the year 1989, the State Government created one post of Joint Secretary in the respondent-Board. The first post was created on 06.11.1989 and thereafter another post was created on 16.06.2010. However, due to lack of formulation of necessary Recruitment and Promotion Rules, the petitioner was not conferred promotion against the said post, though, he was fully eligible to be considered for promotion in terms of the draft Recruitment and Promotion Rules/Regulations. His name was forwarded by the respondent-Board for promotion against the post of Joint Secretary on 16.08.2014. Though on 25.09.2014, the Department of Personnel allowed the respondent-Board to fill up the post of Joint Secretary as per law, however, in the interregnum, the petitioner retired from service.

On 14.04.2016, after the formulation of the Recruitment and Promotion Rules, respondent-Board promoted S/Sh. Chaman Lal and Vijay Kumar as Joint Secretaries. The petitioner represented to the respondents to consider his case also for promotion against the post of Joint Secretary on regular basis or ad hoc basis, whichever was beneficial to him, from due date, however, his prayer was rejected vide order dt. 21.03.2017.

Feeling aggrieved, the petitioner filed OA(D) No. 48 of 2017 before the erstwhile Himachal Pradesh Administrative Tribunal, which after the abolition of the Tribunal, was transferred to this Court and registered as CWPOA No. 3737 of 2020. The prayer made in the original application was for setting aside of order dt. 21.03.2017 and for issuance of a direction to the respondents to consider and promote the petitioner against the post of Joint Secretary on regular/ad hoc basis, whichever was beneficial to him from 16.08.2014 as per the past practice and confer upon him the monetary benefits.

Vide judgment dt. 14.12.2022, learned Single Judge dismissed the petition inter alia by holding that the claim of the petitioner was not tenable for the reason that there could be no anticipation regarding approval or finalization of the Recruitment and Promotion Regulations merely because the draft Regulations stood prepared and the petitioner had no right to claim ad hoc promotion simply on the basis of past practice being adopted by the Board. Learned Single Judge also held that draft rules cannot generally form the basis of cause of action for an employee.

Feeling aggrieved, the petitioner has filed this appeal.

Having heard learned Senior Counsel appearing for the appellant as well as learned Advocate General and having gone through the judgment passed by learned Single Judge as well as the writ record, we do not find any merit in this appeal. Admittedly as on the day when the petitioner superannuated as a Deputy Secretary, there were no Rules framed for promotion to the post of Joint Secretary. It is settled law that an employee does not has a fundamental right of promotion and the only right is that of consideration (See: Ajit Singh and others vs. State of Punjab and others (1999) 7 SCC 209). The appellant simply on the basis of past practice or on the ground that draft Recruitment and Promotion Rules/Regulations stood framed qua the post of Joint Secretary could not have been granted a mandamus for promotion thereto.

Hon’ble Supreme Court of India in P.U. Joshi and Others Versus Accountant General, Ahmedabad and others and other connected matter (2003) 2 SCC 632, has been pleased to hold that the conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy and the same is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory Tribunals to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State.

The contention of the appellant that the learned Single Judge erred in not appreciating that the appellant was entitled for promotion even on the basis of draft Regulations, cannot be accepted. Herein, the appellant did not approach the Court while he still was in service. He superannuated from the post of Joint Secretary. The factum of the Recruitment and Promotion Rules/Regulations for the post of Joint Secretary thereafter having been approved and brought into force and certain incumbents thereafter having been promoted against the post in issue, otherwise also, neither created any right in favour of the appellant nor any cause of action to approach the Court seeking a direction for his retrospective promotion, that too, from a date and up to a date when, admittedly, there were no Recruitment and Promotion Rules/Regulations in vogue of the post of Joint Secretary. The Department itself in terms of communication dt. 21.03.2017, rejected the representation of the petitioner for his consideration for promotion against the post of Joint Secretary by inter alia mentioning therein that whereas the final decision on the Rules was taken on 28.07.2015, the petitioner already stood superannuated on 30.09.2014. We agree with the said reasons. This is exactly what was held by the learned Single Judge also.

In view of above discussion, as we do not find any infirmity in the judgment passed by learned Single Judge, the present appeal being devoid of merit is dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly.