Navender Kumar vs H.P. State Forest Corporation & Another

Ajay Mohan Goel, J

The petitioner before this Court filed an original application before learned erstwhile Himachal Pradesh Administrative Tribunal, i.e. O.A.(M)

No.610 of 2016, titled as Navender Kumar Versus The H.P. State Forest Corporation & another, praying for the following reliefs:-

“a. That Annexure P-1 may be quashed and set aside and the respondents may be ordered to promote the applicant as Deputy Ranger from the

due date with all the benefits incidental thereof since the said promotion will effect his pension and other service benefits particularly status of the

applicant would be upgradedâ€​.

After the abolition of learned Tribunal, the Original Application stood transferred to this Court.

Brief facts necessary for the adjudication of this petition are that the petitioner superannuated from the service of the Himachal Pradesh Forest

Corporation as a Forest Guard. He retired as such on 31.03.2015. The case of the petitioner is that before his superannuation, he was entitled for

promotion to the post of Deputy Ranger in the year 2015, however, the promotion was not given, since the Departmental Promotional Committee did

not take place and in the meanwhile, he superannuated. According to him he made a representation in this regard to the respondents, which has been

dismissed vide Annexure P-1, on the ground that he stood retired from the services, which stand of the respondents was not sustainable in the eyes of

law because as the petitioner was denied promotion, as no Departmental Promotional Committee took place in time, therefore, even after his

superannuation, he was entitled to the status and wages of the post to which he deserved to be promoted. It is in this background, petitioner has

approached the Court, praying for the reliefs already enumerated hereinabove.

The reply which has been filed to the petition, inter alia, demonstrates that though a Departmental Promotional Committee was convened for

considering the case of eligible candidates for promotion to the post of Deputy Ranger, however, the petitioner could not be promoted to the post of

Deputy Ranger as he had superannuated before the recommendations of the Departmental Promotional Committee could be given effect too. It is on

this ground that the respondents have justified issuance of Annexure P-1, vide which the representation of the petitioner stood rejected, because

according to them, prayer of the petitioner to give him benefit of sixteen days extension in service for the purpose of promotion was not sustainable, as

said benefit was given to those persons only by the department, who were stagnated on a particular post and could not be promoted due to the non-

availability of the vacancy.

Having heard learned counsel for the parties and having gone through the pleadings, in my considered view, this petition has to be allowed.

Suffice to say that the pleadings in the petition are cryptic. Yet, as the petitioner is entitled for the relief in view of the admissions made by the

respondents in their reply, this Court cannot shun away from its duty of imparting justice by dismissing the petition, on the ground that the same is

drafted cryptically by omitting necessary facts, which would have had facilitated this Court in deciding the case.

It is not in dispute that the petitioner was eligible for promotion to the post of Deputy Ranger when he superannuated on 31.03.2015. Though the

case of the petitioner as is pleaded in this petition is that promotion to the post of Deputy Ranger stood denied to him as no Departmental Promotional

Committee was convened by the department, however, the reply filed by respondent-department demonstrates that a Departmental Promotional

Committee was duly convened, in which the case of the petitioner was also considered for promotion, however, the petitioner could not be promoted to

the post of Deputy Ranger, as he stood superannuated before the process of promotion was completed.

To be more precise, para 6 (i) of the reply filed by the respondent -corporation is quoted hereinbelow:-

“That the contents of this para admitted to the extent that the applicant was working as Forest Guard in Forest Working Division, Kullu in the year

2015. The process for promotion of Forest Guard was in progress. Although, D.P.C. at the level of Director (North) was held on 18.-03-2015, but

compilation of result and scrutiny of result received from other Directors/ General Managers at Head Office level was completed on 25-04-2015,

whereas, the applicant has retired on 31.03.2015. Thus, the claim of promotion is not genuine.â€​

In my considered view, once the Departmental Promotional Committee stood convened for considering the case of the petitioner for promotion to

the post of Deputy Ranger, then the benefit of said recommendation of the Departmental Promotional Committee cannot be denied to the petitioner,

simply on the ground that he stood superannuated before the recommendations of the Departmental Promotional Committee could be implemented.

The onus to implement the recommendations of the Departmental Promotional Committee was upon the department concerned and for the acts of

omission of the department, the petitioner cannot be made to suffer.

It is settled law that though right to promotion is not a fundamental right, but right to be considered for promotion is a fundamental right. In this case,

the petitioner was duly considered by the Departmental Promotional Committee for promotion and the tone and tenor of the reply of the respondent-

department is that the petitioner was also recommended for promotion. In such like scenario, in case, the recommendations of the Departmental

Promotional Committee are not implemented and in the interregnum, an employee retires, then benefit of the recommendations of the Departmental

Promotional Committee has to be given to such like employee, though may be notionally. This is for the reason that after Departmental Promotional

Committee recommends promotions, then issuance of the order of promotion, not being in the hand of employee, cannot act to his deterrent in case he

stands superannuated in the meanwhile. The date of superannuation of an employee is well within the knowledge of the employer and therefore, onus

falls fairly squarely on the employer to ensure that promotion orders of such like employee who stands recommended for promotion, but is to

superannuate in near future are issued without any undue delay.

Accordingly, this writ petition is allowed by quashing Annexure P-1 and by ordering that the benefit of the recommendations of the Departmental

Promotional Committee be given to the petitioner, though on notional basis, by deeming him to have been promoted to the post of Deputy Ranger one

day prior to the date of his superannuation. From the said date, as upto the date when the Original application was filed before learned Tribunal, i.e.

03.03.2016, notional benefits of promotion shall be given to the petitioner and thereafter, actual benefits as accrue to the petitioner, shall be conferred

upon him including monetary benefits. In case the monetary benefits as are due to the petitioner as a result of this judgment, are paid to him within 90

days from today, then no interest shall be payable upon the same, but in case the same are not paid within 90 days as from today, then the same shall

entail 6% simple interest as from the date of filing of the Original Application. Petition stands disposed of in above terms, so also pending

miscellaneous applications, if any.