Rajinder Prasad Dhiman vs State of H.P. and Others

Surjit Singh, J.—This writ petition is directed against the order, dated 16th January, 2004, Annexure P-6, whereby the order of promotion of the Petitioner, dated 13th April, 1999, copy Annexure P-3, has been withdrawn. He seeks quashing of order of the reversion, Annexure P-6, as also quashing of all orders, issued on account of withdrawal of the order of promotion, for re-fixation/reduction of his pay and change in seniority.

Petitioner had been working as Junior Engineer in Irrigation and Public Health Department of Government of Himachal Pradesh, when order of promotion, Annexure P-3, was issued on 13th April, 1999. As per this order, a large number of persons including the Petitioner, whose name figured at Sl. No. 65, were promoted. Thereafter, in the year 2002 vide notification dated, 19th October, 2002, Annexure P-5, final Seniority List was issued after circulating a tentative Seniority List and inviting objections to such Seniority List. In that Seniority List, Petitioner was shown to have been promoted w.e.f. 13th April, 1999 and his name figured at Sl. No. 163 in that list.

On 16th January, 2004, order, Annexure P-6, was issued. According to this order, on review of DPC, Respondent No. 5, Mani Ram had been promoted as Assistant Engineer from the post of J.E. in place of the present Petitioner and Petitioner''s name, which appeared at Sl. No. 65 in the order of promotion, Annexure P-3, was withdrawn. By the same order, seniority of the Petitioner was also changed and his name was ordered to be shown at Sl. No. 206 in place of 163, in the Seniority List circulated in October 2002, vide Annexure P-5. Petitioner was promoted as Assistant Engineer w.e.f. 6th September, 2001, vide Annexure P-9.

A representation was made by the Petitioner on 26th September, 2004 in which reference was made to the order of reversion and change of seniority, copy Annexure P-6, but the action of reversion had not been assailed, though change in seniority was challenged on the ground that once the final Seniority List had been published after inviting objections qua tentative Seniority List, circulated earlier, there could not have been any change in the Seniority List. Another representation, Annexure P-13 was made on 1st January, 2009, seeking promotion to the post of Executive Engineer and in this representation also, order of reversion, Annexure P-6, had not been assailed. Reversion has been challenged for the first time in the present writ petition, which was filed in the year 2009 in this Court, that is to say more than 5 years after passing of the impugned order, Annexure P-6.

Plea taken by the Respondents to justify the withdrawal of promotion of the Petitioner is that the post, against which the Petitioner had been promoted, was reserved for Scheduled Caste J.E. and at that time, there was one J.E. senior to Petitioner, belonging to Scheduled Caste, but the name of that person could not be considered, for the reason that by over-sight in the Seniority List of J. Es. that person was not shown to be belonging to Scheduled Caste. According to Respondents No. 1 to 4, that person was Respondent No. 5, Mani Ram, and when this error came to their notice, DPC was reviewed and Respondent No. 5, Mani Ram, on having been found fit for promotion, was recommended to be promoted against the post reserved for Scheduled Caste J.E., against which post Petitioner had erroneously been promoted, vide Annexure P-3 and consequently, impugned order, Annexure P-6, was issued promoting said Mani Ram from the date of issuing of order, Annexure P-3 and showing his name in the Seniority List at the point where Petitioner''s name had been shown and shifting the name of the Petitioner at Sl. No. 206.

I have heard learned Counsel for the parties and perused the record.

As already noticed, while narrating the case of the Petitioner, the Petitioner did not challenge the action of Respondents No. 1 to 4 in withdrawing his order of promotion, though he did assail change in his seniority and also raised a question as to how the period from 13th April, 1999, the date of his withdrawn promotion, to 6th September, 2001, the date from which he was promoted as Assistant Engineer, was to be treated. He has challenged the order of withdrawal of promotion, for the first time, in the present writ petition, which he has filed more than 5 years after the withdrawal of his promotion. When asked to explain this delay, learned Counsel for the Petitioner submits that representations made by the Petitioner, copies Annexures P-8 and P-13, remained pending with Respondents No. 1 to 4, till the filing of the writ petition. As noticed hereinabove, in neither of the two representations, the Petitioner challenged the withdrawal of order of his promotion and change in the date of his promotion from 13th April, 1999 to 6th September, 2001. What he assailed was the change in the Seniority List shifting his name from Sl. No. 163 to 206.

Not only that Petitioner did not make any representation, assailing the order of withdrawal of his promotion and change in the date of his promotion for 13.4.1999 to 6th September, 2001, but in the present writ petition also, he has not denied in his rejoinder to the reply filed by Respondents No. 1 to 4, the fact that he had been erroneously considered for promotion against the post reserved for Scheduled Caste J.E., ignoring a senior Scheduled Caste J.E., and when this mistake came to notice, the order of his promotion w.e.f. 13th April, 1999 was withdrawn and he was given promotion w.e.f. 6th September, 2001. Now if the Petitioner had wrongly been considered for promotion and so promoted vide Annexure P-3, without considering a person senior to him, who also belonged to Scheduled Caste, on that error coming to their notice, Respondents No. 1 to 4 were well within their right and also justified, to revise the order of promotion of the Petitioner and to promote him from the date when he was entitled to be considered for such promotion.

In view of the above stated position, I see no merit in the writ petition. Hence, the same is dismissed.