Ghana Nand Sharma vs The State of Himachal Pradesh

R.S. Pathak, C.J.—The Petitioner was appointed a Lower Division Clerk in the office of the Executive Engineer, Chamba Division, Himachal Pradesh Public Works Department by an order, dated December 29, 1953. He passed the departmental examination held in May, 1959 and was promoted as an Accounts Clerk by an order dated October 21, 1959. He was posted in the office of the Executive Engineer, Solan Division. The third Respondent, Girdhari Lal Bisht, was also promoted as an Accounts Clerk. The fourth and fifth Respondents, Hans Raj Bisht and Sunder Lal Sharma, were promoted as Sub-Divisional Clerks.

It appears that the Divisional Accountant, under whom the Petitioner worked as Accounts Clerk in Solan Division, entered adverse entries in the Petitioner''s Confidential Reports for the years ending March 31, 1961 and March 31, 1962. The adverse entries were communicated to the Petitioner on July 28, 1961 and October 20, 1962 respectively. On September 5, 1961 the Petitioner filed a representation against the adverse entries for the year ending March 31, 1961 and on November 12, 1962 he represented against the adverse entries for the year ending March 31, 1962. The former adverse entry was expunged on January 28, 1964 and the latter on September 17, 1964. Meanwhile, in August 1963 two posts of Upper Division Clerks fell vacant in the office of the Chief Engineer, Himachal Pradesh P.W.D., Simla. The Petitioner, who was eligible for promotion to those posts was not approved by the Departmental Promotion Committee in its meeting of June, 1963, because of the adverse entries in his Confidential Reports for the period ending March 31, 1961 and March 31, 1962 which had not yet been expunged. The third and fourth Respondents, who were admittedly junior to the Petitioner, were promoted. Thereafter, in January, 1964, three posts of Upper Division Clerks in the same office fell vacant, and the Petitioner was again passed over for promotion to one of the posts. Instead, the fifth Respondent, although junior to the Petitioner, was promoted. The Petitioner says that he was passed over because the adverse entry mentioned above had not yet been expunged. It was only subsequently on June 10, 1964, that he was promoted to the rank of Upper Division Clerk, because meanwhile the adverse entries for the year ending March 31, 1961 had been expunged and two subsequent favourable reports for the period December 31, 1962 and December 31, 1963 had been added. However, the Petitioner when so promoted was placed at a position junior to the third to fifth Respondents. It seems that subsequently when promotions were effected to the rank of Head Clerk, the Petitioner was promoted along with the third to fifth Respondents but placed junior to them. There is no dispute that in the rank of Lower Division Clerks the Petitioner was shown by an order dated May 16, 1966, as senior to the third to fifth Respondents. Apparently, he was placed junior to those Respondents in the higher ranking posts because they were promoted to those posts before he was. The Petitioner contends that when determining his seniority for the purpose of promotion to those higher posts it should have been taken into account that his representations against the adverse entries were pending and subsequently effect should have been given to the circumstance that the adverse entries were expunged. The Petitioner says that for no fault of his he has been reduced to a position junior to those who were earlier junior to him. Reliance is placed upon an office memorandum dated February 20, 1967 detailing the procedure in those cases where at the time of promotion when considering the Confidential Reports containing adverse entries it was found that a representation was pending against such entries. It was laid down that a decision by the Departmental Promotion Committee should be deferred until the representation had been disposed of. The Petitioner claims that his seniority in the higher ranking post should be redetermined and he should be shown senior to the third to fifth Respondents. Hence this petition under Article 226 of the Constitution.

So far as the office memorandum of February 20, 1967 is concerned it is not disputed that it operates prospectively only. Apparently, there were no rules governing such cases at the time when promotions were considered in June, 1963 and January, 1964. The original records were produced before us, and it appears that in the proceedings in June, 1963 the only reason for passing over the Petitioner was the existence of the adverse entries. They were expunged later. In the case of the promotions effected in January, 1964, the records disclose that the adverse entries were merely part of the material considered as operating against the Petitioner. In the circumstances, learned Counsel for the Petitioner has confined his case to the contention that the Petitioner was entitled to be promoted in the meeting of June, 1963, and the Departmental Promotion Committee should have taken into consideration that representations were pending against those adverse entries. The only contention on behalf of the Petitioner is that he was entitled to promotion in the proceedings taken by the Departmental Promotion Committee in June, 1963 and that when the Government received the recommendations of the Departmental Promotion Committee it should have taken into consideration the fact that the representations made by the Petitioner against the adverse entries in his Confidential Reports were still pending.

Now, it does appear that the proper and right thing would have been for the Government to have ensured that all pending representations against entries in the Confidential Reports of each officer were disposed of before the Departmental Promotion Committee commenced its proceedings. However, I am unable to hold that in omitting to do so the Government contravened any statutory obligation in that regard or that it infringed any legal right of the Petitioner. No mala fides either can be attributed to the Government. As regards the Departmental Promotion Committee, it was bound to consider the record of each employee as it existed at the relevant time. In Parkash Chand Sharma v. The Oil and Natural Gas Commission 1970 S.L.R. 116 the Supreme Court pointed out:

If the adverse remarks were there in the Confidential Reports it was the duty of the Departmental Promotion Committee to take note of them and come to a decision on a consideration of them.

It is unfortunate that the representations remained pending when the question of promotion was taken up by the Departmental Promotion Committee. In the absence of any evidence of discrimination, the consideration by the Committee of the Confidential Reports concerning the Petitioner as they stood at the time was merely fortuitous. That was the view taken by the Supreme Court in Parkash Chand Sharma (supra) where the employee had not even been given a chance of making a representation against the adverse entries although admittedly it was open to him to make representations against the adverse entries. Before he could exercise the right, the '' Departmental Promotion Committee took up and completed the proceedings for promotion. On behalf of the Petitioner reliance has been placed on M.G. Sirsikar v. State of Mysore AIR 1967 Mys. 136 but in that case it was apparently assumed that the Court could grant relief where the decision of the Departmental Promotion Committee rested on entries in the officer''s records which were subsequently found to be unjustified. That question, on the contrary, has been raised specifically before me, and in my opinion, it must be answered against the Petitioner.

The recommendations of the Departmental Promotion Committee had to form the basis of the promotions by the Government. Rule 8.13 of the Himachal Pradesh Public Works Department Subordinate Class III (Clerical and Stenographers Service) Recruitment and Promotion Rules, 1960 is clear as to that. Accordingly, the contention raised on behalf of the Petitioner must be rejected.

As no other point has been pressed on behalf of the Petitioner, the writ petition fails and is dismissed, but in the circumstances there is no order as to costs.